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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 21 It was a rule in courts of equity, before the revision of the statutes, that the interest of the beneficiary in a trust in lands, could not be affected by any act of the trustee in favor of a party having notice of the trust; and by our recording acts, every purchaser and incumbrancer is chargeable with notice of all conveyances made by parties under whom he derived title, which have been recorded according to the statute. (Shepherd v.McEvers, 4 John. Ch., 136; Beekman v. Frost, 18 John., 544.) This rule, so far as it applies to the present case, is now matter of positive law, the statute respecting trusts having declared that "where the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void." (1 R.S., 730, § 65.) It is unnecessary now to inquire whether, notwithstanding the strong language of the act, such a sale would not be supported between the parties to it and their privies in estate, if the beneficiaries of the trust should not assert their rights; for the plaintiff here claims to hold under the creditors, who were the parties interested in this trust. If he is right as to the effect of the *Page 22 legal proceedings which resulted in the sale to him, he is in the most favorable position which he could occupy to avail himself of the protection afforded by the statute.
This view was answered by the counsel for the defendant attempting to maintain that the re-conveyance of the surviving trustee to Masten was, in some proper sense, an act in the execution of the trust and not one subverting and destroying it. When a trust of lands is fully executed, the legal estate of the trustee is at an end. (1 R.S., 730, § 67.) Where this is the case, there is strictly no necessity of a re-conveyance, for the estate of the trustees ceases by operation of law. It is doubtless a convenient practice, when the purposes of a trust have been consummated, that the party to whom the estate in that event belongs should have written evidence of the fact under the hands of the trustees. But their deed operates rather as the declaration of a fact peculiarly within their knowledge, and as to which their statement would generally be received, than as an authentic legal act or the conveyance of an estate. If when, in a trust of this character, the debts are paid, the estate of the trustees ceases, there is nothing whatever for them to convey. But if this were otherwise, and if it were one of the operative trusts in this assignment, to re-convey the residue of the estate to Masten or his heirs, after they should have sold enough to pay the debts, a re-conveyance leaving the debts unpaid would be an act in contravention of the trust. A party about to take a title under such a re-conveyance, with a knowledge of the terms of the trust, would know that it was an essential pre-requisite to the validity of the deed, that the trusts should have been actually performed. There is no principle which substitutes the declaration of the trustees, however solemnly made, in place of the fact which could alone authorize them to re-convey. The purchaser, if he would be safe, must not content himself with the recital that the trusts have ceased, but must ascertain at his peril whether such is the case. (Swarthout v. Curtis, 1Seld., 301.) The statute avoids all deeds which are in truth in contravention of the trust, and there is no exception in favor of such as are fraudulently made to appear in consonance with it by means *Page 23 of untrue statements inserted in them. We have been referred to the statutory provision declaring that the title taken under a trustee authorized to sell, is not to be impeached on account of the misapplication of the money paid for such title by the trustees. (1 R.S., 730, § 66.) The conveyances here upheld are such as are made in fact and in form in pursuance of the trust, and where the only fault is the subsequent misconduct of the trustees in embezzling or misapplying the money; and I conceive that the enactment has no application to a case like the present.
The defendant founds himself upon a familiar doctrine of equity, that a bona fide purchaser for a valuable consideration, who acquires the legal title, shall be protected against a prior equity of which he had no notice. Where the parties have an equal equity, the one who holds the legal title is considered as having the better right. This is a principle of great practical importance in England; and it obtains equally here though its application is less frequent, on account of the abolition of formal trusts, and our practice of recording conveyances and incumbrances, whether they accompany the legal title, or are what the common law would regard as equitable interests, and of the constructive notice which, by the statute, the record of such conveyances afford. There is a remarkable case reported in 3 Mylne Keene, 581 (Jones v. Powles), which illustrates the rule, and shows to what extent it is carried. John Jones, the owner of a freehold estate, borrowed money upon it and executed a mortgage, but before anything else occurred, he paid it off; but the mortgagee did not execute a re-conveyance. With us the title conveyed by the mortgage would be extinguished at law as well as in equity. But there, as is well known, it is otherwise. John Jones died, and one Meredith produced a will by which, if genuine, Jones devised to him all his real and personal estate. Meredith went into possession, and borrowed money of Hall and procured the mortgagee of the satisfied mortgage to join with him in the mortgage deed, which, however, recited the fact of the satisfaction of that mortgage. The defendant derived her title from Hall. She had made further *Page 24 advances, and had taken a conveyance of the estate. It was afterwards discovered that the will was a forgery, and the heir at law of John Jones filed a bill to redeem if anything was due, and for relief, as heir, on the ground of the falsity of the will. Thus it will be seen that the defendant's claim upon the legal estate, was through the holder of the satisfied mortgage, of the payment of which she had notice by the recitals in the deeds under which she claimed, and that all her equity was derived from parties holding under the forged will; and yet it was decided, that having the formal legal estate, and an equity equal to that of the heir at law, she was entitled to prevail against the latter as to all her advances made before she had notice that the genuineness of the will was contested. The opinion of the Master of the Rolls may be thought to favor the position of the defendant in the present case. He said: "My impression at the opening of the case was that the protection of the legal estate extended only to cases where the title of the purchaser for valuable consideration, without notice, was impeached by some secret act or matter done by the vendor or those under whom he claimed; but upon full consideration of all the authorities which have been referred to, and the dicta of judges and text writers, and the principles upon which the rule is grounded, I am of opinion that the protection of the legal estate is to be extended, not merely to cases in which the title of the purchaser for valuable consideration, without notice, is impeached by reason of a secret act done, but also to cases where it is impeached by reason of the falsehood of a fact of title asserted by the vendor or those under whom he claims, where suchasserted title is clothed with possession, and the falsehood ofthe fact asserted could not have been detected by reasonablediligence."
I distinguish the principle of that case, which carries the doctrine to the greatest length to which it was ever extended, from the present, by holding that the legal title vested in the trustees did not pass by the conveyance to Masten; and I think it did not pass, because they could not legally make an operative conveyance, except in the execution of the trust, and the deed *Page 25 to Masten was not in the execution of the trust, but in disaffirmance of it. It was in hostility to it, and if operative it subverted and put an end to it, though its objects were not accomplished. It was precisely such a conveyance as the statute referred to by the terms conveyances in contravention of thetrust. The mandate of the statute that such conveyances shall be absolutely void, forbids us to hold that they shall pass the legal estate which was vested in the trustees, for the purpose of tacking equitable interests to it, or for any other purpose. I repeat, therefore, that this re-conveyance, upon the facts which were established on the trial, was inoperative as against the creditors of Masten, and that they were, notwithstanding, entitled to have the land embraced in it subjected to sale for the payment of their debts.
The remaining inquiry relates to the effect of the action in the Court of Chancery, and of the final judgment in that action in the Supreme Court in Equity. I have examined these proceedings with a disposition to find some means by which the mortgage to the Trust Company could be sustained, being convinced that it was taken in good faith and without the neglect of any ordinary precautions, while Mr. Dorman was not wholly without fault in omitting to bring the premises to a sale, and to settle up the trust in his lifetime. The consequence of not making the Trust Company a party to that action is, that it was not concluded as to any matters which were there adjudged. The receiver was at liberty, therefore, to show in the present suit that the recital in the deed of re-conveyance was true, and that the title to the premises had actually re-vested in Masten by the execution of the trust. This, however, was not proved by the defendant, but, on the contrary, the plaintiff showed affirmatively, that a large amount of indebtedness, protected by the second class of the assignment, remained unpaid to the representatives of Dorman, when the surviving trustees executed the re-assignment. The proof established the position that the re-assignment was a void paper. When, therefore, Dorman's administrators filed their bill to enforce the trust, they were under no legal necessity to make the Trust Company or its *Page 26 representative a defendant. It would have been convenient to do so, as all questions might in that way have been determined in one suit. But if the administrators were content to rely upon their ability, at any time, to show the facts rendering the re-assignment inoperative whenever it should be set up, and to convince bidders that it would form no impediment to the title, they were at liberty to compel a sale in execution of the trust without taking any notice of the claim of the Trust Company under its mortgage. This is what, in effect, they did do. Their bill stated the facts necessary to show that the property assigned to the trustees was still liable for the payment of their debt, though the surviving trustees had violated their duty in attempting to convey it to Masten; and although the specific prayer was that Robinson and Van Buren, the surviving trustees, should be adjudged liable to pay them, there was also a prayer for general relief, and the scope of the bill was adapted to a decree which should require the property to be sold for the purposes of the trust. The decree of the Chancellor seems to have contemplated an arrangement of the liabilities of the defendants in the action, and of the lands in question, which, if carried out in the final decree, might have produced the satisfaction of the debt without touching the interests which Masten had conveyed to the Trust Company. According to its provisions, Masten was first to be resorted to. If an execution against him did not raise the amount, then the real estate in his hands, unsold, was to be subjected; and lastly, if satisfaction was not obtained, there was to be a personal judgment against Robinson and Van Buren on account of their breach of trust. The decree was not final, but a reference was ordered to ascertain certain facts, and the case was to be again set down upon the report and upon the equity reserved. This was done at a special term of the Supreme Court in Equity, upon which occasion additional proof was taken showing that the personal remedy against Masten was worthless on account of his insolvency. The report also established that the real estate re-assigned had been incumbered by mortgages and judgments to a large mount, if Masten was capable of incumbering it. The special *Page 27 term, in its decree, departed from the course which the Chancellor had indicated. It declared the complainants' debt to be a lien upon the lands embraced in the terms of the re-conveyance, and that that instrument was void between the plaintiffs and the defendants, and it directed a sale of these lands in satisfaction of the lien in the manner in which sales are made upon the foreclosure of a mortgage, and it prescribed the order in which the sale should take place, and provided for a personal judgment against Robinson and Van Buren for any deficiency which might remain unsatisfied of the plaintiff's debt. The effect of this decree as to the land was to carry out and execute the trusts of the assignment, and the purchaser under it took a title of the same nature which he would have gotten if the trustees had themselves sold him the property in the course of administering the trusts. He holds his title under the assignment. Inasmuch, however, as the Trust Company was not at all concluded by the decree, and might still, if it were able, controvert the facts upon which the invalidity of the conveyance was pronounced, the purchaser brought this action to have that question determined, and to remove the cloud upon his title. Had the defendant been able to show that the purposes of the assignment had been accomplished, so that the title had re-vested in Masten before the execution of the mortgage, the decree of the Supreme Court would not have stood in his way; but as the fact was found to be otherwise, the law considers him a stranger to the subject of the controversy, and he has no right to object to the disposition which the decree made respecting the land. All the parties interested in it were before the court, and of course concluded by what was done.
According to the practice of the Court of Chancery, it may be doubted whether it was regular to change the effect of decretal order of the Chancellor upon the hearing upon the equity referred. The regular course was to petition for a rehearing. But if an error in this respect was committed, it does not affect the validity of the judgment. The parties to the suit chose to waive the irregularity, if one was committed, and a party against whom it is given in evidence in another suit *Page 28 cannot impeach it collaterally. Unless it is void for want of jurisdiction, or some other cause, it can only be questioned in a proceeding for a review.
But the defendant is entitled to redeem. The mortgage to the Trust Company was not void. By sections 61 and 62 of the article of the Revised Statutes respecting uses and trusts (1 R.S., 729), Masten had such an interest in the premises, irrespective of the re-conveyance by the trustees, that he could grant or devise them. Indeed, it is declared that he has a legal estate in them against all persons except the trustees and those claiming under them. But the plaintiff, as the purchaser under the judgment of the Supreme Court, is clothed with the rights of Dorman's representatives, and the defendant must, therefore, in order to redeem, pay the amount of that debt, with interest. (Vroom v. Ditmas, 4 Paige, 526.) But the defendant should not be compelled to pay the costs of the suit commenced in the Court of Chancery. The mortgage to the Trust Company was on record, and that corporation, or the persons representing it, might have been made parties. The judgment of the Supreme Court, which requires the mortgage to be satisfied, must be reversed, without costs in this court, and the record must be remitted to enable that court to proceed as in an action for a foreclosure, if the defendant shall not elect to redeem the premises. The judgment of this court to be settled by one of the judges.
JOHNSON, Ch. J., ALLEN, GRAY and GROVER, Js., concurred.