Cooper v. Henderson , 6 Binn. 189 ( 1813 )

Tilghman C. J.

after stating the facts and exceptions, delivered his opinion.

1. The first exception has been abandoned. There was nothing in it, because the deed of assignment contains general expressions, embracing all the px-operty of the insolvent, whether mentioned in the schedule or not.

2. The act of assembly contains no px-ovision for the apr pointment of new trustees in case the first refuse to act, or die. It seems to have been taken for granted, that thex-e never would be a refusal to act, and with proper care thex-e never could, because the intended trustees might be consulted before the assignment was executed. But it is said that the assignment having beexx executed, it is necessary that the' Court should have the power of making a new appointment, otherwise the trust could not be carried into effect. There cex-tainly would be a great convenience in the power to make a new appointment, and I have no doubt that within the spirit of the law the Court possess.it; but it does not follow that the estate shall be vested in the second trustees, without a conveyance from those pei'sons in whom it had been vested by the assignment. There can be no- necessity for that, because thex-e is no reason to presume that such convejmnce would not have been made if the Court had ordered it; or even without sixch order, if application had been made to the assignees, and information given them of the new application. In England the estate of a baxikrupt becomes vested in the .commissioners, by the commission of an act of bankruptcy,, ipso facto. JBut this is by the express provisions of an act of parliament. Our act of assembly directs the conveyance to be made by the insolvent debtor himself. But suppose the assignees should refuse to act, and also refuse to execute a reconveyance? If the Court have power to order a conveyance, they have power to compel obedience to their order. If they have no power to make the order, the matter is at an end. That point however is not before us. It does not appear that the assignees in this case, ever refused to convey to the plaintiff, or were ever applied to for that purpose. The plea of necessity therefore, on which the plaintiff has rested his case, falls to the ground.

3. All the cases cited by the plaintiff’s counsel, in which the person bringing an action, has been obliged to shew in his writ or declaration, the right by which he brought it, are of personal actions. But it is not so in suits for the recovery of land. Our ejectments are regulated by a late act of assembly, which prescribes the form of the proceedings, and the plaintiff has pursued it word for word. I am of opinion therefore, that in this respect all is right. But as the plain- ■ tiff in error has made good his second point, thé judgment must be reversed, and a new trial ordered.

Yeates J.

The counsel of the plaintiffs in error have very properly abandoned one of the errors assigned, that the assignment of James Cooper previous to his discharge by the insolvent act, did not include- all the property he had at the time. The assignment is as comprehensive as words can make it.

I can see no reason -for the exception, that Henderson shoúld -shew on the face of the record, in what capacity or character he brought his suit. I see no necessity for it, nor know any such practice. Where lands have been conveyed to trustees for special purposes, the trustees may support ejectment in their own names, as having the legal estate. The light in which they claim, appears when the trust deed is shown in evidence, and no ill consequences can possibly arise from its not appearing at an earlier sfáge- of the cause.

• I fully agree that the Courts of Common Pleas under-the old act of 14th Febrnarij 1729 — 30, “ for the relief of in“solvent debtors,” (1 Smith’s Laws 181.) possess an inherent power to appoint new, assignees of the property of an insolvent debtor in certain cases. The act is silent in that particular, but its object could be effectuated in no other mode, where the former assignees have died or refused to act. Chancery will never suffer a trust to be disappointed for want of a trustee. Where trustees decline the trust, equity will oblige them to assign to others appointed by the lord chancellor. But here, under the express terms of the second section of the act, “ the estate, interest and property “ of the lands, goods, debts and effects so assigned, shall be “ vested in the person or persons to whom such assignment “ shall be made, who may take possession of and sue for the “ same in his and their own name or names, in like manner “ as assignees or commissioners of bankrupt &c.” How then has this interest been divested from the assignees first appointed by the Court of Common Pleas of York county? By the express terms of a positive law, all the interest of the insolvent became vested in them. They were in full life, and the Court of Common Pleas in York county had in my idea, an unquestionable right to call them before the Court, and oblige them to reassign their interest in the property of the insolvent, in case they refused to accept and act under the trust. How can the substituted assignees or the survivor of them, shew this interest to be in themselves without such reassignment? I cannot conceive it to be possible. Efforts at least should have been made to procure the reassignment. As matters then stood, it was competent to the defendants below, who rested on their possession, to shew an outstanding title adverse to the plaintiff in ejectment. In this point of view, I think the opinion of the Court below was erroneous. Unless the substituted surviving assignee, could deduce his interest under his predecessors or the •survivors of them, I think he was not entitled to recover,- and I am of opinion that the judgment of the Court below be reversed, and a venire facias de novo be awarded.

Brackenridge J. concurred.

Judgment reversed.