The most material question in this case is to ascertain the estate (if any), vested in Abraham K. Fleet after his execution of the trust deed to Hackett and others, and at the time of or subsequent to the purchase by John H. Woodgate at the sheriff's sale under the executions on the judgments against the said Abraham.
If the decree of March, 1843, before the vice-chancellor, must be regarded as res adjudicata, as to the quantum of estate acquired, the question is determined thereby.
The action in which that decree was entered, was brought by Mrs. Martha E. Fleet (the wife), and John K. Fleet and others, children of the said Abraham and Martha, and beneficiaries under the said trust deed, against John H. Woodgate and others, to have the validity of the said trust declared, for the appointment of new trustees, and for an injunction restraining Mr. Woodgate from prosecuting an action of ejectment for the land in question, which he claimed under his title acquired at the sheriff's sale. The title so acquired was the interest of Abraham K. Fleet. *Page 16
If any of the trusts contained in the deed to the trustees were valid, no right of possession was acquired by the sheriff's deed, and the trust deed constituted a bar to the action of ejectment. The complaint of Mrs. Fleet and her children against Mr. Woodgate and others is in evidence, but not the answer of Mr. Woodgate. We are, for the want of the answer, without the evidence required to determine the precise issues made by the pleadings in that action. The evidence shows that the controversy turned, in part at least, upon the delivery and acceptance of the trust deed. The validity of the trust provisions were also material to the inquiry, and might have been set up against the title of the trustees. The best evidence we have on the subject, is the points made by the counsel of Mr. Woodgate at the hearing, and these do not indicate that any question was urged as to the validity of the trust provisions. The assistant vice-chancellor did, however, discuss in his opinion, and by the decree which he pronounced, declare the extent or quantity of the estate of the beneficiaries, and the validity of some of the trust provisions, and the invalidity of others, and where the fee finally vested; by which it appeared that no estate, present or future, was vested in Abraham K. Fleet, and the decree perpetually enjoined the prosecution of the action of ejectment.
Judge STRONG, before whom the present action was tried, has found, in effect, that the construction of the trust deed, as to the extent of the estates or interests of the respective beneficiaries, was not in issue before the vice-chancellor, and that in this respect he was limited to the determination of the question whether the provisions were valid so far as to maintain a valid title in the trustees. The judge omits to state the facts from which he draws his legal conclusion, but an examination of the evidence confirms its propriety. The points referred to, are the plainest indication afforded us by the evidence. The beneficiaries were not in a condition to litigate the extent of their respective estates, inter sese. It was sufficient for them, if there was any valid trust. It was *Page 17 material for Mr. Woodgate to establish that the trust deed passed no estate, and he was at liberty to urge that the provisions of the trust were void in whole or in part, but there is no evidence that he did so. Judge STRONG holds that the decree of 1843 was final in this respect to the extent only of its "existing efficacy, which required that the beneficiaries had equities which should be protected by an injunction against the operation of the legal estate of Mr. Woodgate;" that the case was open for judgment as to the construction of the provisions of the trust and the extent or quantum of interest of the beneficiaries. The judgment appealed from declares that John K. Fleet took a vested estate at the age of twenty-one in one-fifth; that the trust continued as to one other fifth during the joint lives of Martha E. Fleet and her said husband; that as to the remaining three-fifths, the reversion remained in Abraham K. Fleet, and vested in possession when John K. Fleet attained his majority, and passed by the sheriff's deed to Mr. Woodgate, subject to the mortgage to the loan commissioners and to the right of dower of Mrs. Fleet. The invalidity of the trust as to three fifths of the estate, appears to have been so declared on the ground that the power of alienation was suspended during some portion of the lives of persons not in being at the creation of the trust estate.
In my opinion, we should adopt this construction. It carries into effect the intention of the grantor as to the two-fifths of the estate, wherein the trust is held valid. The interest of John K. Fleet, to some extent, according to the effect of this judgment, vested at the creation of the estate. The portion which he would finally take was then unknown, the intention of the grantor having, by the deed, been declared to be that the "property shall go to, and be divided amongst the said Martha (his wife), John K. (his son), and all lawful children of the party of the first part (the grantor) which shall be living at the time the said John K. shall arrive at age, in equal proportions, share and share alike."
When John K. became of age there were three other children living, born after the execution of the trust deed, and *Page 18 the said Martha E. was also then living. Pursuing the intention of the grantor, as declared by his deed, John K. was then entitled to one-fifth of the estate in possession. The further provisions of the trust declared "that the shares of the children thereafter born shall be held in trust for them until the said children shall arrive at lawful maturity." When the vice-chancellor's decree was made in 1843, John K. was yet an infant, and the extent or quantum of the estate that would finally belong to him when he became of age was unknown, for the reason that the number of children who would then be living was uncertain. If no other children were living when John K. became of age, he would take a moiety, and the trust would continue for the benefit of Mrs. Fleet, as to the other moiety, if she should be also then living, and no part of the estate would revert to Abraham K. Fleet. The vice-chancellor correctly held that the trusts were void in favor of unborn children to continue till they respectively reached the age of twenty-one, but his views were erroneous in respect to the persons who were entitled to take by reason of the void provisions in favor of such children. The invalidity of the trust provision for unborn children did not increase the interest of John K. Fleet nor of Mrs. Fleet, but to that extent the land would revert to the grantor.
The decision of the vice-chancellor is conclusive, that the deed of Abraham K. Fleet conveyed the legal estate to the trustees. The Supreme Court were not, however, concluded from harmonizing the provisions of the judgment in this action with the intentions of the grantor, as to the quantity of the estate granted to his wife, or for her use, and to the son, who was living at the creation of the trust; and that result has been effected.
Three-fifths of the estate reverted to the grantor, when John K. Fleet attained his majority. Had not the rights of a judgment creditor intervened, the grantor could have so disposed of this reverted interest or proportion, as to have carried into effect his original designs, had he continued to be of the same mind. The sheriff's deed, therefore, takes *Page 19 effect as to the three-fifths of the estate which reverted to Abraham K. Fleet.
There is no question, that the deed from John K. Fleet also conveyed his one-fifth interest to Mr. Woodgate.
Some other questions of minor importance, were urged by the appellant's counsel, which I will now consider:
1st. Mr. Ayres paid a sum of money to the loan commissioners, toward the purchase of the mortgage to them, and afterward, when one of the commissioners went out of office, his successor applied the amount as a payment on account, and the appellant now urges that this sum was properly so applied; and that it was erroneous to hold that the whole amount of the mortgage remained unsatisfied.
The mortgage was never assigned, and the commissioners had no power to sell or assign it. It was a mistake to enter the money as a payment. That was not the purpose for which Mr. Ayres paid the money. He was in no way liable for the debt; and it was a mistake of the commissioners to receive it as upon an agreement of purchase, which they had no authority to enter into. Neither Abraham K. Fleet, nor Mr. Woodgate are entitled to any benefit from the money, nor was it paid on behalf of them, or either of them. The decree properly provides, on this state of facts, that the loan commissioners shall collect the whole sum due on the mortgage, and repay to Mr. Ayres the sum so received from him.
2d. It is further urged by the appellant, that the evidence of Mr. Cogswell, and of Mr. Warner, as to what the deputy sheriff stated, in respect to the payment of the Pinckney execution, was inadmissible, and has had some influence on the judge below, affecting his finding that the judgment on which the execution issued, was paid before the sheriff's sale to Mr. Woodgate.
This evidence was improperly admitted. The deputy sheriff was dead at the time of the trial, but that did not authorize his declarations to be given in evidence. The declarations of a former owner of land, since deceased, against his own interest, have been admitted as evidence against his *Page 20 successors in estate, but that is not the relation here. I am not aware of any ground upon which this evidence can be legally sustained. It did not prove payment any more than the recitals of the sheriff's deed proved non-payment. It is probable that the learned judge would have reached the same conclusion from other evidence. It is said that Mr. Woodgate did not set up the Pinckney judgment as a foundation of the sheriff's sale, or of his title to the land in the suit before the vice-chancellor, when it would have cut off the mortgage to the loan commissioners. It would not be unfair to infer from the omission to set it up, when it would have affected his interest so favorably, that he could not, with truth, do so, or that the evidence then existed to prove its payment. Mr. Pinckney also gave some evidence tending to show that the judgment was paid. But the judge states that he has found the fact of payment, in part, on the evidence of Cogswell and Warner, and, I think, we cannot, for that reason, hold that their evidence was immaterial.
Upon the ground last mentioned alone, I think that we must order a new trial.
Judgment reversed and new trial ordered, costs to abide the event. *Page 21
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