Melick v. Pidcock

The opinion of the court was delivered by Depue, J. Tunis D. Meliek, on the 20th of April, 1878, made a mortgage to his father, Peter W. Meliek, upon certain lands in the — 537 — county of Hunterdon, which he had acquired under the will of his grandfather. The mortgage was assigned by Peter W. Meliek to Fisher Pidcock, the complainant, on the 24th of July, 1884. Subsequent to the making of the mortgage, and prior to the assignment to Pidcock, to wit, on the 15th of May, 1878, Tunis conveyed the mortgaged premises to Sarah Ann Studdiford, in trust. The deed of conveyance was an indenture of bargain and sale between Tunis D. Meliek, of the first part, and Sarah Ann Studdiford, of the second part, whereby the party of the first part, for the consideration of $1, did grant, bargain, sell, alien, release, convey and confirm all that certain interest or remainder devised to him by his grandfather in the premises unto the party of the second part, in trust, nevertheless, for the two children of Tunis D. Meliek, Clarence and Caroline, for their use and benefit, and their heirs, as tenants in common, in equal shares and proportions, * * * it being intended by this indenture to convey the same, subject only to such charges and incumbrances as by said last will and testament are set out, it being the object of the said party of the first part to convey all his right, title and interest therein, with the appurtenances, to have and to hold the aforesaid premises with the appurtenances, unto the party of the second part, in trust, as aforesaid for the said Clarence and Caroline Meliek, their heirs and assigns, forever. In this condition of the title, Pidcock, on the 19th of August, 1884, filed a bill to foreclose his mortgage and for the sale of the mortgaged premises. To this bill Clarence and Caroline Meliek, the eestuis que trust, were made parties and filed answers. Sarah A. Studdiford died before the bill was filed. Tunis D. Meliek was not made a party, he having conveyed by the trust deed his interest in the mortgaged premises. A final decree for the sale of the mortgaged premises was made October 2d, 1885. On this decree execution issued to the sheriff of Hunterdon, who made sale of the premises on the 25th of January, 1886. At this sale the complainant became the purchaser. The sale was confirmed by the court, and a deed in pursuance thereof made and delivered to the complainant. — 538 — Tunis D. Melick was in possession of the mortgaged premises at the time of the foreclosure sale, and the complainant applied to the court for a writ of assistance against Tunis D. Melick to have possession of the premises delivered to him. A writ of assistance was refused, on the ground that there being no word of inheritance in the grant to Mrs. Studdiford, upon her death the interest of the grantor devolved upon him again, and the rights of the cestuis que trust terminated. Pideoek v. Metiek, 6 Atl. Pep. 679. The complainant thereupon filed this bill, which is a bill of strict foreclosure, as distinguished from the usual bill for foreclosure and sale. Its prayer is that Tunis D. Melick may be decreed to pay the complainant the amount due him for principal and interest on the mortgage, and that in default thereof the said Tunis D. Melick, and all persons claiming from or under him, may be barred and foreclosed of and from all equity of redemption in the mortgaged premises. To this bill Tunis D. Melick and Sarah M. Melick, his wife, were made parties. Mrs. Melick was made a party as the assignee of a judgment recovered on the 6th of April, 1886, by James J. Bergen against Tunis D. Melick, for a debt incurred by Tunis D. Melick prior to the execution of the complainant’s 'mortgage. Tunis D. Melick and Sarah M. Melick both answered the bill, setting up that the complainant’s mortgage was made without consideration and with the intent to defraud creditors. Mrs. Melick further, by way of cross-bill, set up that she was also the owner of a judgment recovered by Kline Melick against Tunis D. Meliok on the 4th of June, 1878, and asked a decree establishing the priority of both judgments over the complainant’s mortgage for the reason above mentioned. The latter judgment was held by Peter W. Melick at the time the original foreclosure suit was begun, and he was made a party to that suit as owner of this judgment. Mrs. Melick’s status in this suit depends, therefore, upon the judgment recovered by Bergen, and that judgment was recovered after the decree in the original suit, and after the execution sale and the sheriff’s deed to the complainant. — 539 — The deed from Tunis to Mrs. Studdiford conveyed to her an estate upon a simple trust, without any discretionary powers or active duties to be performed by the trustee. Under such a conveyance the incidents of the trust estate are a jus habendi, or right of actual possession in the cestui que trust, and also the jus disponendi, or right in the cestui qui trust to require the trustee to convey the legal estate as the cestui qui trust may direct. Lewin on Trusts 18.- The trust in its nature and quality is such as would be executed by the statute. Rev. pp. 165,166. The trust, as declared in the deed, is for the use of Clarence and Caroline, and their heirs and assigns forever — words which, in a legal estate, would create a fee. In construing the limitation of trusts courts of equity adopt the rules of law applicable to legal estates. Gushing v. Blake, 3 Btew. Eq. 689. On the assumption that the trustee took only a legal estate for life, Clarence and Caroline-took an equitable estate in fee simple. It is clear that the equitable estate vested in them did not terminate at the death of Mrs. Studdiford, even if she took by the deed only an estate for her-life; for it is a maxim in equity that a trust once created shall not fail for want of a trustee, and the court will follow the estate into the hands of the legal owner, whoever he may be, and compel him to give effect to the trust by the execution of proper assurances, unless the legal estate has gone to a bona fide purchaser for value. # Lewin on Ti-usts 833. In Weller v. Rolason, % G. E. Gh\ 13, the testator directed his executor -to invest the residue of his estate in the purchase of a house and lot to belong to his widow during her widowhood, and on her death to be sold and the proceeds equally divided among his children. The executor made the purchase, and took a deed to himself as executor without words of inheritance. The executor and the widow having died, on a bill filed by the testator’s children to have the lands applied to the purposes of the trusts declared in the testator’s will, a decree was made against a purchaser from the grantor’s heirs, having knowledge of the trust, that a conveyance be made in fee, and that the. lands be sold, and the proceeds be applied to the trusts-declared in the testator’s will. If Mrs. Studdiford took only a life estate by the deed, and the — 540 — legal title reverted to the grantor ou her death, the trust estate in his children was not thereby destroyed. The lands would remain in the grantor’s hands, charged with the trust. Nor did the trust deed, upon a construction of all the limitations contained in it, grant to Mrs. Studdiford only an estate for life. It is undoubtedly the common law rule that an estate of inheritance cannot be created by deed without the word “ heirs.” In a will an estate of inheritance may pass without the word “ heirs,” for in a will a fee simple doth pass by the intent of the devisor ; but in feoffments and grants the word “ heirs ” is the only word that will make an estate of inheritance. CVo. Lit. 8b 96. The rule of the common law, that in the creation of an estate by deed the word “heirs” is necessary to pass the fee, has not been altered in this State by statute, nor has it been modified or relaxed by judicial construction. No synonym can supply the omission of the word “ heirs,” nor can the legal construction of the grant be affected by the intention of the parties. Kearney v. Macomb, 1 C. E. Gr. 189; Adams v. Ross, 1 Vr. 505; Sisson v. Donnelly, 7 Vr. 432, 434. But it is also a maxim of the highest antiquity in the law that all deeds shall be construed favorably, and as near the apparent intention of the parties as is possible, consistent with the rules of law. 4 Cruise 272. To .create a fee the limitation must be to “heirs;” but it may be made either in direct terms or by immediate reference, and it is not essential that the,word “heirs” be located in any particular part of the grant. 4. Kent 6; 2 Prest, on Estates 2; Shop. Touch. 101; Com. Dig., tit. “ Estate A ” 2; 3 Bac. Abr. 425, tit. “ Estate B.” In Doe v. Martin, 4 T. R. 39, 65, the deed of settlement was “ to the use of all and every the child or children of a marriage equally share and share alike; if more than one, as tenants in common, and not as joint tenants; and if but one child, then to such only child, his or her heirs and assigns forever.” The words “ his or her heirs,” “ considering,” as was said by Lord Kenyon, “ the whole settlement and the manifest intention of the parties,” were .allowed to' operate as words of limitation on all the preceding words of the sentence. — 541 — Conveyances to uses are construed in the samé manner as deeds deriving their effect from the common law. 4 Cruise 258. The word “ heirs ” is necessary to create a fee. Bilt where the conveyance is in trust, the trustee will take the legal estate in fee, although limited to him without the word “ heirs,” if the trust which he is to execute be to the cestui que trust and his heirs. The words of limitation and inheritance in such case are connected with the estate of the cestui que trust, but are held to relate to the legal estate of the trustee, because without such construction the trustee would not be able to execute the trust. 1 Wash. R. R. 57; Newhall v. Wheeler, 7 Mass. 189; Stearns v. Palmer, 10 Metc. 32; Cleveland v. Hallett, 6 Cush. 403; Welch v. Allen, 21 Wend. 147; Neilson v. Lagow, 12 How. (U. S.) 98, 100; North v. Philbrook, 34 Me. 532. Stearns v. Palmer,, supra, is very like the present case. By a deed of bargain and sale, lands were conveyed to A, B and C, in trust for the inhabitants of the parish of S., for a burying-ground forever, “ to have and to hold the said lands to the said A, B and C, in trust for the use of the inhabitants of said parish, and their heirs forever, as a burying-yard.” It was held that the deed conveyed to A, B and C a fee simple estate. Wilde, J., said: “ The words ‘their heirs’ in the deed may be construed as applied to the immediate grantees, and ought to be so construed to effectuate the clear intention of the parties.” The rule of construction adopted in the foregoing cases applies as well to a grant upon a simple trust as to grants with special powers or active duties in the trustee, and is not a whit more liberal than that adopted by the King’s Bench in Doe v. Martin, in the construction of successive limitations, to effectuate the manifest intention of the parties. Conveyances upon simple trusts are regarded in law as grants for the benefit of the cestui que trust. In every such conveyance the intention of the grantor is to give the quantum of estate limited in the declaration of use. The estate of the trustee, and the use limited upon it, are parts of one entire conveyance, the trustee’s estate being subsidiary to the-purposes of the trust. A construction which will apply words of inheritance in the trust to the trustee’s estate is absolutely — 542 — necessary to give effect to the intent of the grantor. Our statute, which extends to every person to whom the use of lands is given, granted, limited, released or conveyed by deed, grant or any other legal conveyance whatsoever, and converts the equitable estate into a legal estate, should have great weight, if not a controlling affect, upon the construction of a deed to uses within its purview. Rev. p. 165 § 66. A use expressed in words of inheritance demonstrates that the grantor by his deed intended to convey a' fee. The statute declares that the grantees'to whom the use is given, limited, granted or conveyed, shall be deemed in as full and ample possession, to all intents, constructions and purposes, as if such grantees, their heirs and assigns, were possessed thereof by solemn livery of seisin and possession. Unlike the English Statute of Uses, 27 Hen. VIII c. 10, our statute acts upon the use granted, without referring to the trustee’s estate, and converts the former into a legal estate. There is nothing in Adams v. Ross or Kearney v. Maeomb contrary to this view. In Adams v. Ross the word “ heirs ” was neither in the granting part of the deed nor in the habendum. It was found only in the covenants for title annexed to the grant. Covenants of warranty or for title are mere incidents of the grant, designed for indemnity or security for the estate granted. They can neither enlarge nor narrow the grant, and will themselves be restrained and limited to the estate conveyed. Com. Dig. tit. “Estate A” 2; Clanrickard v. Sidney, Hob. 273; Seymour’s Case, 10 Co. 97; Rawle on Covenants for Title 199, 415, 524. The decision in Adams, v. Ross in this court was expressly put upon the ground that covenants for title were no part of the conveyance. The error of the supreme court, for which its judgment was reversed, was in calling in aid covenants for title to enlarge the grant. In Kearney v. Macomb the deed was to A. K. K., his legal representatives and assigns, to hold the same and the proceeds thereof upon the trusts and conditions set forth in an antenuptial contract. Neither the deed nor the antenuptial contract contained the word “heirs.” In both these cases the words indispensable to create a fee in a grant were entirely wanting, and there was no room for construction. In Weller v. Rola — 543 — son reformation of the deed was necessary. The deed did not contain the word “ heirs,” nor did the trust appear in any way in it.' Price v. Sisson, 2 Beas. 168, affirmed 2 C. E. Gr. 475, decided that a conveyance to grantees and their heirs for the use of the grantees and their heirs, in trust for certain persons beneficially interested, did not vest the legal estate in the' beneficiaries, because of the common-law rule, that when a use is limited upon a use the statute executes only the first use. In the deed to Mrs. Studdiford, the first and only use declared is for the beneficiaries, Clarence and Caroline, and their heirs, and all the authorities, ancient and modern, agree that the statute executes the first use and converts it into a legal estate, except where the powers and ■duties conferred upon the donee to uses are such as require in him the legal estate for their discharge. Under the trust deed, the children of Tunis took an equitable estate in fee simple, and Mrs. Studdiford, as trustee, a legal estate in fee, and there was no estate to revert to Tunis on the trustee’s death. By the statute, the legal estate of the trustee became vested in the cestos que use,. The complainant, as purchaser under the foreclosure decree, to which the children of Tunis were parties, acquired the estate of the mortgagor, and also the fee in the equity of redemption. This bill was unnecessary to perfect the complainant’s title under the original foreclosure suit. Indeed, in any aspect, the prayer of the bill, which is that Tunis redeem the complainant’s mortgage or be foreclosed, is inappropriate. If any relief by bill was needed, the prayer should have been that Tunis convey to the complainant as owner of the equitable estate, and a decree for a conveyance would have been as of course. A decree dismissing the complainant’s bill for this reason would be inequitable. The defendants’ opposition to the allowance of a writ of assistance, on the ground that the complainant’s title under the foreclosure was imperfect, and the denial of the writ, for that reason, cast a cloud upon the complainant’s title. The defendants did not demur or object to the bill. The complainant made Mrs. Melick a party to this suit. By her answer ■and a cross-bill, she set up that the mortgage held by the com — 544 — plainant was made by her husband, without consideration, for the purpose of defrauding his creditors. The complainant answered the cross-bill, joining issue on the allegations in it. The bill may, and should, under the circumstances, be treated as a bill by the complainant to remove a cloud upon his title. The Master found against the defendants on the merits, and advised a decree for the complainant. The burden of proof is upon the defendants. The testimony is conflicting and unsatisfactory, and in some respects unreliable. The evidence was taken orally in the presence of the Master, with opportunity to see and observe the demeanor of the witnesses. On a consideration of the whole case, as presented by the testimony, I find no reason to reverse the finding of the Master, and the decree advised by him should be affirmed.