Fisher v. Field

1 Lock. Rev. Cas. 481

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: July 1, 1799
• Status: Published

Opinion

On the hearing of the cause, the Chancellor Lansing dismissed the appellant’s bill with costs, on the ground that the certificate of G., in the transfer of his discharge to Bird, was neither good as a grant; nor as a contract under the statute of frauds. He held that the certificate was a nullity as a conveyance, no consideration being expressed in it, and no words legally competent to convey an interest in lands, having been made use of. Neither was it good asa contract, for it does not specify any terms of an agreement, nor express any consideration; that the consideration is a part of the agreement, and the whole agreement must be set forth; and cites Wain v. Walters, 5 East, 10, as the true rule, and as equally binding in law and equity. On appeal,

The Court of Errors held, Kent, Chief Justice, delivering the opinion of the court, that as G., at the time of the transfer to B., by the certificate, had only an equitable interest, that the certificate was an assignment of that right, and transferred his whole interest, and was sufficient for that purpose, without any words of inheritance or consideration expressed in the instrument. That it amounted to a declaration of trust, and was a sufficient authority to B., to procure a patent in his own name, had not the statute directed it to be issued in the name of the soldier; and that after the patent, G., took it as a trustee to B., who had the equitable interest; especially as the act of April 6, 1790, provided, that previous sales and dispositions of the lands made by soldiers should be valid, and the patent having a retrospective effect must be deemed to have vested the lands in the patentee and his heirs from the 17th of March, 1783; that no particular form of words was requisite to create a trust.

The defendant Fields purchased of Griffen, knowing of the assignment, and therefore he was a purchaser, chargeable with the trust, and as much bound to execute the trust, as the soldier himself. Per Kent, C. J., p. 506.

This being the unanimous opinion of the court, the decree below was ordered to be reversed, and that a decree be made that the respondent be decreed to convey the land to the appellants, and be enjoined, &c., according to the prayer of the bill.