Shepherd v. M'Evers

4 Johns. Ch. 136

• Court: New York Court of Chancery
• Decided: September 8, 1819
• Status: Published

Opinion

The Chanoellor,

Theophylact Bache was indebted, qn the 8th of June, 1807, to the house of Sauer, Eyre Sp Co, of which the plaintiff is the survivor. This appears very clearly from the -certificates of T. B: of the 22d of May, 1795, and the 17th of February, 1796, and front the testimony of J. O. Hoffman, JY, Van Antwerp, wad Andrew Bache. The last of these witnesses proves the confessions, of T. B. a short time before his death, in 1807, as to the existence and validity of the debt.

Being so indebted, T, B. on the 8th of June, 1807, conveyed his real estate in the city of New- York, and in the county of Essex, to the defendants M‘Evers and Lispenard,. in tvfist, to pay his debts, These defendants accepted that trust, and entered upon the execution of it, and it was not in their power, without the assent of the cestui que trusts, (of which the house of Sauer, Eyre Co. were one,) or without the direction of this court, to discharge- themselves of the trust. I take this to be a clear and settled rule of the. court. It appears, however, that on the 9th day of October, following, those defendants, without such assent or direction, united with T. B¿ in a conveyance of that estate to the other defendants, upon other trusts and conditions, which, in their operation, excluded the plaintiff from all benefit under either deed. This conveyance was evidently a breach of trust; and as the grantees in the second deed had knowledge, at the time, of the first deed, and of its contents, they became chargeable with the trusts contained in the, first deed. The vested interest of a cestui que trust, cannot be impaired or destroyed by such a voluntary act of the trustee, and the trust will follow the land in the hands of any person taking it with knowledge of the trust. Though a trust be created for the benefit of a third person, without his knowledge at the timé, he may, afterwards, affirm the trust, and enforce its execution; (3 Johnson’s Ch. Rep 261.) but in this case, the trust was violated by the creation of a different trust, before the house of Sauer, Eyre, fy Co., ill England, had due opportunity to act under it.

I shall, accordingly, decree, that a reference be had to ascertain and report the amount of the plaintiff’s debt, as shown by the proofs and exhibits in this cause, after making all just allowances, and that the master take an account of the proceeds of the real estate mentioned in the deed of the 6th of June, 1797, and of the debts chargeable thereon, under the said deed, and how much of these proceeds has come to the hands of the defendants, or either of them, and of the investment and disposition of these proceeds, or any part thereof, by way of payment, or otherwise, or of the lands, or any part thereof, by the defendants, or any part of them, and that he have power to examine the parties upon oath, and to take such proof, by witnesses, not already ex.amined, as either party may produce, and that the question of costs, and all other questions, be, in the mean time, reserved.

Decree accordingly.