Moir v. Brown , 14 Barb. 39 ( 1852 )

By the Court, Hand, J.

It does not appear that one of the subscribing witnesses saw the assignment executed at all: and the other only wrote the initials of his name, on the 16th or 19th of July. But it is sufficient that Shattuck & Foster both acknowledged the assignment before a proper officer.

It is pretty clear from the testimony, that 'the assignment was not delivered to Amasa Shattuck, nor did he accept the trust, or act under it, until after the levy. B. Ball testified, that he acted under an authority from Shattuck, in writing; but, though called for on the trial, no writing was produced, and the testimony of Amasa Shattuck himself certainly tends to show that he did not accept the trust, at least till after the levy; and leaves it in doubt whether he ever heard of it, until about the time he came to Troy, in September, after the goods were sold. He says he consented to act as assignee with reluctance. But his son wrote to him in September, to come to Troy, and he adds, “ I think I knew before that time that the assignment had been made; I do not know when or how I got the information.” He states, that before the goods were sold to the plaintiffs, “ he had heard nothing in regard to the purpose of selling.” Delivery of a deed to a third person, is said to be a good delivery, if it be for the use of the grantee. (Church v. Gilman, 15 Wend. 656. Elsey v. Metcalf, 1 Denio, 323. Rathbun v. Rathbun, 1 Barb. S. C. Rep. 98.) And a part of the trustees named may, it seems, renounce, and the willing trustees take the estate. (Small v. Marwood, 9 B. & C. 300. Nicholson v. Woodworth, 2 Swanst, 365. 21 Vin. 535. Hill on Trustees, 225. And see Johnson v. Fleet, 14 Wend. 176; Crewe v. Dicken, 4 Ves. 97; Adams v. Taunton, 5 Madd. 435.) But I find no case authorizing one assignee to execute the trust without any disclaimer or neglect of his co-assignee, and without even notice to him of the assignment. One named as trustee may refuse to accept, in which case the estate never vests in him. (Townson v. Tickell, 3 Barn. & Ald. 31. Hill on Trust. 223.) And it seems he may disclaim by parol; and even his conduct may amount to a disclaimer. (Hill on Trus. 224.) But to disregard him in the first instance, without notice and without any neglect or expression of refusal on his part, would be disregarding an important part of the assignment. As to realty, trustees take as joint tenants, and all must unite in a sale, and they have all equal power, interest and authority, with respect to the trust estate. (1 R. S. 727, § 44. Id. 735, § 112. Hill on Trust. 305, and cases there cited.) As between the parties thereto, it is generally presumed the grantee accepts a conveyance, until the contrary is proved. (Townson v. Tickell, supra. And see Doe v. Smith, 6 B. & C. 112; Hill on Trust. 224.) But it has been held that an assignee must accept before levy upon personal property. (Crosby v. Hillyer, 24 Wend. 280.)

If any estate vested in Shattuck before the levy, he seems to have had no agency in the attempted sale. It would have been difficult to make him accountable as trustee, upon the ground of any interference with the trust fund, up to the time of the sale.

The complaint alledges that the defendant, as sheriff of the county of Warren, “ without any lawful right or authority, unjustly seized, and forcibly and wrongfully took from the possession of the plaintiffs, and without any lawful right or authority carried away” the property. The sale to the plaintiffs was on the 18th of September. The deputy of the defendant testified that he made the levy on the 11th of that month. If the taking was at that time, the property was not taken from the possession of the plaintiffs, and they could not maintain this action. I do not, however, find that this objection was specifically taken at the trial.

But disregarding these objections, I think there is a conclusive answer to this suit. When Shattuck executed the assignment, the schedule of the property was present, though not annexed to the assignment. As I understand the testimony, the assignment and schedules were then on several loose sheets or half sheets, not fastened together in any way; and he declared these sheets parts of the same instrument. Three days afterwards Foster signed the assignment, and after that, it would seem, all but schedule A were wafered together by some one, and transmitted to the clerk of the county, in an adjoining town, for record. A person acting for one of the assignees kept possession of schedule A, and after this suit was commenced, he obtained possession of the assignment, which had been recorded in the mean time, and then, for the first time, affixed schedule A thereto. It does not appear that the assignor, Foster, ever saw that schedule. It is said, the assignment conveyed all the personal property of Shattuck & Foster without the schedules. That conveys all their lands, tenements and hereditaments in the state of New-York, and adds, “and all the goods, chattels, merchandise, bills, bonds, notes, books of account, judgments, evidences of debt and property, of every name and nature whatever, of the said parties of the first part, more particularly enumerated and described in the schedule hereto annexed, and marked schedule A.” Clearly this schedule contained the personal estate, and the only personal estate transferred. It would control and limit the general words, by every sound rule of construction. (Wilkes v. Ferris, 5 John. 335. Munro v. Alaire, 2 Caines, 327. Roe v. Vernon, 5 East, 51. Dae. v. Greathead, 8 Id. 91.) And until that was annexed, the instrument would be inoperative. It conveys all the real estate in this state. But to the schedule we are to look for a specification of the personal propertyand the assignors may say, nothing more was conveyed; only that which was thus “ more particularly enumerated and described.” This assignment is almost in the very language of that in Wilkes v. Ferris, (supra;) and the court said in that case, that it was not á general assignment, for although the words in one place be general, yet the assignment immediately goes on to specify, by a reference to schedules annexed, the specific articles of property assigned, and it therefore could operate only upon the articles specified. And had this been a perfect instrument as to B. F. Shattuek, still one partner could not make a general assignment to trustees for the benefit of creditors, giving preferences. (Havens v. Hussey, 5 Paige, 30.)

Even as between the parties, it seems an assignment would not be valid, unless executed with the schedules annexed. In Weeks v. Maillardet, (14 East, 568,) there was an agreement to deliver up to the plaintiff, on a future day, the whole of the mechanical pieces as per schedule annexed, so much to be paid therefor on the day that the plaintiff delivered the pieces as therein mentioned. Both parties executed both parts or duplicates of the agreement under seal; and the subscribing witness had present at the time an exact inventory of the property, and on which they had agreed, and which he afterwards copied upon the part or executed copy belonging to each. But the court held the contract insensible; and that it had no object to operate upon, without the schedule. From the report of the case, it seems that the judges did not put their decision merely on the nonexistence of the schedule at the time, or rather part of them did not advert to that circumstance; but on the ground that it was not, as it purported to be, a scheduled instrument. And in that case, as here, the instrument purported to convey the whole of his mechanical pieces. (And see Burgh v. Preston, 8 T. R. 486; Brake v. Smith, Moor, 679; Zouch v. Clay, 3 Lev. 35.)

There are some other decisions which sustain this view of the case. In Averill v. Loucks, (6 Barb. 474,) which was a contest among creditors, it was held that the assignments were void, where all the property was assigned to pay debts in certain schedules “annexed,” and schedules giving preferences were to be made and annexed as soon as praticable, and within sixty days in one, and thirty in the other; and one of them provided that a schedule of the personal property should be added xvithin thirty days. What is not attached to the instrument, in such cases, is no part of it; and if afterwards attached by consent of all parties, it forms anew deed. (Cook v. Remington, 6 Mod. 237.) If another instrument is referred to, and so described as to make clear the identity, it becomes incorporated by the reference. (Habergham v. Vincent, 3 Ves. Jun. 228. Tonnele v. Hall, 4 Comst. 143.) And so where the instrument was an absolute conveyance, and the annexation of the schedule not a condition precedent, although it was provided that schedules should be made and annexed at some future time, it was held to be valid. (Keyes v. Brush, 2 Paige, 311.) And sometimes a subsequent misdescription does not vitiate. (Mann v. Mann, 14 John. 1. Doe v. Greathead, supra.) But the case is different where the schedule is made a part of the conveyance, and is referred to as containing a specification of property conveyed, and was intended to be annexed. It must then be annexed, not only as a description and specification of the property, but it is necessary by the very terms of the instrument, to complete the conveyance or transfer.

Affixing the schedule after the suit was commenced did not remove the difficulty. If it had been duly authorized by the parties to it and re-delivered, it might have been a valid assignment of the personalty, as between the parties, from that date. But if done by the assignees only, or by one authorized to act for them, it was a material alteration, and would make the assigment, at least, void for the purposes of evidence. (Pigot’s case, 12 Coke, 27. Chitty on Cont. 677, 591. Lewis v. Payne, 8 Cowen, 71. Waring v. Smyth, 2 Barb. Ch. 119.) But I find no proof that it ever was annexed by the authority of the parties, or with their knowledge.

No doubt a contract may consist of different papers, as letters, statements, &c., but as a general rule, they must all refer to each other, so as to be understood without parol evidence. Wills of personal estate, in England, were almost exceptions before the last revision, for they were often made in the loosest manner, and jet sustained by the ecclesiastical courts. But those decisions do not affect the general rule. The recent case of Dyer v. Green, may seem in conflict with these views. (1 Exch. Rep. 71.) The plaintiff claimed under a bill of sale of “all the goods, fixtures, household effects, plate, china, and effects of whatever nature or kind belonging to us, and in and about the messuage, tenements or premises where he now resides, and being No. 2 Park Road, Old Kent Road in the county of Surrey, and the chief articles whereof are particularly enumerated and described in a certain schedule hereunto annexed.” The schedule was not annexed or stamped. At the trial, the chief baron thought the schedule a separate instrument, requiring a stamp, and the assignment inoperative without it. But a new trial was granted; and Alderson, B. who delivered the opinion of the court, said, “the deed must be considered as enumerating aE the articles : it in fact does so, by describing them as articles in a particular house.” Whereas he considered the conveyance in Weeks v. Maillardet was of a certain number of uncertain articles; and, as the party bound himself to deliver all the articles in the schedules, the deed was insensible without the schedules. Dyer v. Green was very dissimilar to the one now under consideration. The bill of sale, irrespective of the 'schedule, specified the kind of articles, and described them as being in a particular house, occupied by the vendee, and were therefore very probably in his possession, and the schedule did not purport to contain all the articles ; so that the bill of sale was the best evidence of what was sold; and would not have been controlled, limited or restricted by the schedule, if it had been admitted. It is difficult to see how it could have varied the effect of the bill of sale in any way. The judge said, in relation to Weeks v. Maillardet, “in that case, all the articles were enumerated in the schedule—here they are not—which shows that the deed has an operation independently of the schedule.” And the chief baron said it had before been decided, (Duck v. Braddyle, M’Clel. 217,) that a deed legally stamped was not vitiated by referring to inventories not stamped: and that the question was, does the deed operate without the inventory; ' if it does, then the inventory is merely referred to as a memorandum for a more certain knowledge of the articles. But the case now under consideration resembles that' of Weeks v. Maillardet. The schedule, had it been annexed, would have been valid, and would have controlled the assignment, making it an assignment of certain specified articles. That was what all parties intended to do, but left the instrument inchoate and imperfect in a most material part. The assignment proposed by the parties was never executed. How was it possible for the assignees, even as between them and the assignors, to show title to a single article 1 The schedule was, until annexed, no part of the deed, and could not be proved to explain, vary or affect the sealed instrument. All the cases in which this has been allowed, were by a memorandum made on the deed before or at the time of its execution ; or by some plain reference to another separate instrument. Here the reference is to a schedule annexed, and there was none. This was the portion of the deed necessary to give force and effect to the conveyance; and without which it was impossible to know what was transferred. It will open the door for the grossest frauds, particularly as against other creditors, if the schedule may be kept separate and unrecorded until litigation ’begins, and be annexed at the pleasure of the assignees or any third person. Indeeed, the chancellor, in Keyes v. Brush, (supra,) and the court in Wilt v. Franklin, (1 Bin. Rep. 517,) intimated that the want of schedules furnished a presumption of fraud, in a suit between assignees and other creditors.

Upon principle and authority, I do not see how, at least as against creditors, we can sustain this instrument as a valid transfer of the personal property now in question. (See Cooper v. Smith, 15 East, 103; 1 Sug. V. and P. ch., 3, § 3; Jackson v. Titus, 2 John. 430; First B. Ch. &c. v. Bigelow, 16 Wend. 28; Winsor v. Pratt, 2 B. & B. 650; Kenworthy v. Scofield, 2 B. & C. 945; Smart v. Prujeau, 6 Ves. 560.)

If this view is correct, it seems unnecessary to notice some of the other points supposed to arise in this case. It is said the assignment was void, because it authorized a sale of the property on credit. (Barney v. Griffin, 2 Comst. 365. Porter v. Williams, 5 How. Pr. R. 441. Meacham v. Stearns, 9 Paige, 105.) It authorizes the assignees to take possession of the property and “ sell and dispose of the same upon such terms and conditions as in their judgment they may think best and meet for the interest of the parties concerned, and convert the same into money.” This language certainly gives a broad discretionary power; sufficient, in an ordinary power of attorney, to sustain a sale on credit. If the assignment had been valid to transfer the property, an improper execution of the trust, afterwards, would not divest the title of the assignees. They had notice to put them upon the inquiry as to the nature of their vendors’ title; and consequently they knew or might have known that such a sale, at least without the consent of the cestuis que trust, was not a proper execution of the trust. Without reference to the validity of the assignment, I very much doubt whether, under all the circumstances of this sale, the plaintiffs obtained such title to the property as will enable them to maintain this action, (1 R. S. 730, §§ 65, 66. Hill on Trust. 342, 165. 3 Sug. V. and P. 176, et seq. 10 Paige, 282.) However, if the view that has been taken in regard to the validity of the assignment is correct, it is not necessary to decide these points.

[Franklin General Term, July 5, 1852.

Willard, Hand, Cady and C. L. Allen, Justices.]

I think the judgment should be reversed and a new trial granted.

Judgment reversed.