Tyson v. Dorr

' The opinion of the court was delivered by

Sergeant, J.

In Agnew v.Dorr, (5 Wharton, 131,) the assignment required a full and complete release by the creditors. A condition inserted in hís- release-by a creditor,- that-he- should receive-twenty-; *263five per cent, of his debt, was held to be bad, as not in compliance with the terms of the assignment, and as throwing on the assignees difficulties and embarrassments incompatible with the execution of their trust. But in that case there was no release executed; there was merely a letter written by the creditor, agreeing to become a party to the assignment and release, on condition of the fund paying twenty-five per cent, of his claim. This was held to be in its nature merely an executory agreement which could not be enforced without a consideration, and as the creditor could not come upon the fund, his agreement to release would not be enforced. In the present case there is not merely an executory agreement, but a technical release, executed under hand and seal; and the result is different. For, as is said in Agnew v. Dorr, it is certain that a technical release will discharge a duty at law, without consideration, and that chancery will not relieve against it, where the releasor has acted with full knowledge of all necessary circumstances. The release, therefore, is in the present case clearly binding.

If, then, the release be binding, and the condition inoperative, by reason of its repugnancy to the terms of the assignment, and the impossibility that it should be performed, the consequence is, that the release remains single and absolute, and extinguishes the debt. For the principle of law has long been settled,’ that if one gives an obligation with condition to be void on the performance of that which is impossible at the time of its execution, the bond is single, and it is the same as if there were no condition at all; and so of a feoffment. Co. Lit. 206. Sav. 96. Leon. 189. Bro. 155. 1 Bac. Ab. 649; and the distinction is drawn between a bond or deed executed, and an agreement executory; for if an estate be to arise, or a duty to commence on a precedent condition that is impossible, they can never have effect.

Now the condition of this release is, that the assignment pays over twenty-five per cent, of the claim. But this could never be; for the assignees could not divert the funds from their appropriate channel, which was first to the preferred creditors; next amongst those who executed perfect releases; and lastly, to the assignors. Under no possible circumstances could the assignment pay the releasors anything whatever, if they did not release according to the terms of the assignment; nor ■ could the assignees voluntarily pay any portions, without a breach of their trust, which the law will not suppose beforehand, nor recognise when done as valid in its operation. . „

Again, a man cannot release a personal action as an obligation, with a condition subsequent, but the condition will be void: for a personal action once suspended is extinguished forever. 1 Rol. Ab. 412. For instance, a release, if once operative, cannot be avoided: so that one may make a release to operate on a contingency, .'but cannot make a release to.be void on a condition. 1 Inst. 274, b. A *264thing once extinguished cannot be revived; or, in other words, if the release be on a condition subsequent, the release is good, and the condition void. 2 Shep. Touch, by Preston, 325, Law Lib. 91st part, 154. The present is not an instrument by which on a future contingency the release is to become operative: but a release first with a condition which is intended to defeat it subsequently, if the releasor should not receive twenty-five per cent.; and the release ' remains binding, though such condition be never performed.

Judgment reversed.