We are of opinion that the release in question was founded upon a sufficient consideration, and that its legal effect was to discharge the debts, and to extinguish the liens of the judgments referred to in the case submitted.
The trust created by the indenture, dated August 22, 1877, was-*83valid, and vested the legal estate in the lands conveyed thereby in the trustees therein named.
The beneficiaries under the trust acquired only a right in equity to have the same enforced for their benefit, but such right will continue until the trust shall have been fully performed.
The claim of the plaintiff that the lands in controversy have reverted to him, by reason of a breach of a condition subsequent, namely, that the lands conveyed to the' trustees should be sold within eighteen months from the date of the conveyance, cannot, we think, be sustained.
It is true, that a breach of such a condition gives a right of entry to the grantor, and that the possession of the plaintiff would dispense with an action by him to enforce such right. But we think the language of the conveyance, taken as a whole, does not import a condition.
The operative parts thereof are in terms absolute, whereby the lands described therein are conveyed to the trustees, to hold the same and every part thereof, unto them and the survivors and survivor of them, and his heirs forever, upon trust, to sell the lands conveyed at such times and in such lots and on such terms as to them may seem best for the interests of all parties, provided always, that the same be sold within eighteen months, &c.
In construing a deed, we are required to give effect to the intention of the parties to it. ¥e think it quite apparent, that the clause which provides for a sale within eighteen months, was intended as a limitation only* of the discretion of the trustees, as to the time of sale. One of the trusts was, to pay to the plaintiff any surplus which might arise from a sale of a specified part of the lands conveyed. His interests, therefore, might conflict with those of the other cesi/wis que trust, in respect to the time of selling that part of said lands, and it was proper for the protection of all parties that the trustees should not be vested with an unlimited discretion, respecting the time within which the trust should be performed.
The clause referred to, therefore, had no other effect than a direction to the trustees, as to the time within which they should perform the trust.
Before the expiration of eighteen months, the time* of selling *84rested in their discretion. After the expiration of that period, either of the eestuis que trust were at liberty to seek a compulsory performance of the trust. But the trust itself does not cease in consequence of the failure of the trustees to fulfill such a direction. (Wild v. Bergen, 16 Hun, 128.)
The trustees were not bound to sell the property at the estimated value thereof, stated in the trust deed.
If the views expressed are correct, the defendant should not be compelled to take title, and judgment should be entered in his favor, with costs.
Present — Barnard, P. J., Gilbert and Dykkan, JJ.Judgment for defendant upon submitted case, with costs.