Brennan v. Willson , 7 Daly 59 ( 1877 )

Van Hoesen, J.

The learned judge at special term was governed in his decision by the opinion of Judge -drover, in the case of Juliand v. Rathbone (39 N. Y. 375), and following that opinion, he could not have done otherwise than hold that the second'assignment was valid ; and that, in consequence of Trimble’s failure to execute a bond, .as required by law, the first assignment failed to take effect; and that if the second assignment were valid, then the defendants were confessedly able to make a good title, and the plaintiff was bound to complete his purchase, and was not entitled to recover in this action. The learned judge at special term did not decide, and, following, as he did, the opinion of Judge Grover u\ Juliand v. Rathbone, it Avas not necessary to determine, whether or not, a conveyance made by two of three assignees Avas valid, where the third assignee Avas living, and had not been removed, though unwilling to execute the the duties of his trust. If the opinion of Judge Grover were in accordance Avith the law as it is now expounded by the Court of Appeals, there is no doubt but that the judgment-at special term should be affirmed, for in the case at bar, as in Juliand v. Rathbone, the conveyance tendered to the plaintiff was executed not only by the assignees (Trimble included), but also by the assignors themselves; and if the title in Juliand v. Rathbone were good and sufficient, then the title offered to the plaintiff in this action was likewise complete.

Since the trial of this action at special term, however, two decisions of the court of last resort have been published in full, and they both enounce doctrines absolutely irreconcilable with the vieAvs expressed by Judge Grover in the case adverted to. The decisions are those in Thrasher v. Bently (1 Abbott’s New Cases, 39) and Syracuse, &c. R. R. Co. v. Collins (1 Abbott’s New Cases, 47). They both declare the law to be, that the giving of a bond by the assignor is not a pre-requisite to the validity of the assignment, but that the assignment, ex proprio ric/ore, transfers the property to the assignee. The assignors, after making an assignment, have not any interest Avhatever in the assigned property. A conveyance made by the assignors, subsequently to their assignment is, therefore, merely an idle ceremony.

The assignment of July 2d, 1875, was accepted by all three assignees. Trimble, though he did not follow up his acceptance of the trust by giving -the necessary bond, became vested, conjointly with Willson and NeAvman, with the property included in the assignment. Having accepted the trust, he could not by any act of his OAArn, or of his cotrustees, be relieved from the duties and powers Avith Avhieh he was clothed and charged. He could be discharged only by an order of the court. (Thatcher v. Candee, 4 Abb. Ct. Appeals, Dec. 387.) His failure to give a bond was sufficient causé for his removal by the court. (Barbour v. Everson, 16 Abb. Pr. 366.) But until he had been removed, it was not corm petent for Willson and Newman to act without him (Thatcher v. Candee, above cited) ; and before executing the bond, he could not lawfully dispose of the assigned estate. Willson and Newman alone could not convey to the plaintiff a clear title to the property which they had sold to him at the auction sale as against the creditors of Duke and Moore (4 Abb. Ct. Appeals Dec. 391). The plaintiff was under no obligation to take a bad title, and was clearly entitled to recover.

Van Bbtjnt, J., concurred.

Judgment reversed, new trial ordered, costs to abide event. ^*

* Affirmed by the Court of Appeals in 71 N. Y. 502.