
    JOHN HEERMANS, Appellant, v. S. STEWART ELLSWORTH, Respondent.
    
      Debtor—paying debt to Ms creditor—presumption in his favor as against assignee of the debt—Burden of proving notice of assignment—Deed conveying personal property in trust—when revocable as power of attorney.
    
    When a debtor pays Ms debt to Ms creditor in person, the presumption is in Ms favor that he paid it properly and lawfully.
    The burden in such case is with the assignee of the debt to show that it was unlawfully paid after notice.
    A deed conveying all the real and personal property of the grantor, with directions to the grantee therein named to sell the lands and collect the debts due to the grantor, and to pay over the proceeds under the instructions of the grantor, so far as they relate to the personal property, has no other effect than a simple power of attorney, and may be revoked at the pleasure of the grantor.
    Appeal from a judgment in favor of defendant, entered at the Steuben Circuit.
    The action was brought by the plaintiff, as trustee of the estate of Joseph Fellows, -to recover for money loaned by Fellows to the defendant. The defense set up was payment to Fellows.
    The plaintiff claimed title under deeds from Joseph Fellows. The plaintiff put in evidence a deed to him, dated on said tenth day of October, in which said Fellows conveyed to him all his real and personal estate in the States of New York, Pennsylvania, Michigan, Wisconsin, Indiana, Ohio, Illinois and Western Virginia, as and for the purposes therein specified. Said deed had the provisions following: “ Provided, always, that the said Heermans shall sell the said granted lands by retail for the best prices that can be got for the same, and convey them in fee simple to. purchasers with covenants of warranty binding my heirs to warrant and defend the title to the lands so to be sold and conveyed; and until such lands shall be sold as aforesaid, he shall rent such of them as can be rented for the best prices that can be got. He shall collect all debts owing to me, and execute deeds as aforesaid for all lands now under contract of sale on payment of the debts on them respectively. The avails of said real and personal estate shall be paid, distributed and disposed of as follows: First. To defray the expenses of this trust, to wit, five per cent commissions on all moneys received and paid out, and all necessary and reasonable expenditures and charges in and about the execution of the trust, including local agencies. Secondly. During my life the residue of all moneys received shall be paid over to me, or appropriated to my use under my direction. Thirdly. After my decease, and after the payment of all my just and legal debts, and the expenses of the trust aforesaid, the residue shall be de distributed as directed in a writing supplementary to this deed to be executed by me hereafter; or in case such writing shall not be executed, then the residue shall be distributed to my heirs according to the laws of the State of Sew York.”
    The plaintiff also gave in evidence a supplementary deed from said Fellows to him, dated Otctober 15th, 1868, which, referring to the above named deed and writing supplementary thereto, directed the said plaintiff, after said Fellows’ decease, to distribute the estate left after payment of debts and expenses, among certain persons therein named, and pay certain annuities to other persons therein named, all payable from the day of his decease during their natural lives.
    The cause was tried at the circuit in Steuben, in April, 1874, and a verdict rendered for defendant. Judgment was perfected upon the verdict, from which the plaintiff appealed to this court.
    
      Brown de Hadden, for the appellant.
    
      George B. Bradley, for the respondent.
   E. Darwin Smith, J.:

This case comes before us upon exceptions taken during the trial, and presents some points not embraced in any other of the various cases arising under the trust deeds from Joseph Fellows to the plaintiff, heard and submitted to us at the General Term. This action was brought to recover a balance claimed to be due the plaintiff, as trustee, etc., for money loaned by Mr. Fellows to the defendant, and which the defendant had in fact paid to Mr. Fellows in person, after the execution of said trust deed. The plaintiff claims that such payment was unauthorized, and was made with or after notices of the execution and delivery of such deeds. This was the chief question of fact litigated at the trial, and the only one sub Knitted to the jury. The counsel for the plaintiff requested the judge to charge the jury, that the burden of proof was upon the defendant, to show that the payment was made without notice and in good faith. The court refused so to charge, and the plaintiff’s counsel duly excepted; and he excepted also to the charge on this subject as made, in which the learned judge had charged that the burden of proof upon this point was upon the plaintiff.

The charge of the learned judge was clearly correct. When a debtor pays his debt to his creditor in person, the presumption is in his favor, that he paid it properly and lawfully. The burden in such case, is with the assignee of the debt or demand, alleging that it was unlawfully paid, and, after notice of the assignment, to make proof of such allegations. The affirmative of such an issue, rests upon the assignee who purchases a chose in action not negotiable. Until notice is given of the assignment of such chose in action, the debtor may always treat with and pay his original creditors.

The fact of payment, the defendant in such case must establish. On this point he holds the affirmative, but upon the allegation that he made such fraudulently, and after notice of the assignment of the claim or demand, the party making such averment must prove it. The onus is upon him. The substance of the allegations to be tried, determines upon whom rests the burden of proof.

The defendant’s counsel offered in evidence a deed, or instrument in writing, under the hand and sea.1 of Mr. Fellows, dated December, 28, 1868, and served upon the plaintiff about January 1, 1869. The plaintiff’s counsel objected to the reception of such instrument in evidence as immaterial. The objection was overruled, and the plaintiff’s counsel duly excepted. This instrument, in express and explicit terms, revoked and withdrew each and every of the deeds in trust above mentioned, and all powers and authorities in and by them, or either of them, vested in any party, referring to the two deeds executed by said Fellows, dated October 10 and 15, 1868.

I cannot see why this instrument was not admissible in. evidence. What its force and effect may be is another question. That was for the court to decide, after it was produced and proven, and read ' in evidence. If this instrument is valid, as a deed of revocation of the powers of the plaintiff under said trust deeds, it is necessarily a complete defense in this action. The defendant settled his account with Mr. Fellows, and paid the balance of it in 1869, and -long after the execution and delivery of said deed of revocation.

■ So far as this deed or instrument of revocation relates to the personal property of Mr. Fellows, I do not see why it does not entirely operate to revoke all the powers conferred upon the plaintiff by. the deeds of the 10th and 15th October, 1868. Whether those deeds created a valid express trust, or power in trust, in respect to the real estate, they could operate only as a mere common law power of attorney to collect his debts and pay over to him the proceeds. This power is not affected by the provisions of the Revised Statutes, relating to uses and trusts and powers. These provisions of the statutes only apply and relate to real estate. On this point, and so far as relates to the personal property of Mr. Fellows, I agree with the opinion of Judge Miller, in Fellows v. Heermans, that the deeds referred to, have no other force and effect than a simple power of attorney, which could be revoked at the pleasure of Mr. Fellows, at any time.

The provisions in the statutes, in relation to powers in trusts, that every such trust is irrevocable, unless an authority to revoke it is granted or reserved in. the instrument creating the power, do not apply to the power to collect debts, or such a power as is conferred in these deeds in relation to personal property. In the various cases arising under said deeds, heard and submitted at the last term, each ease has been necessarily considered and decided upon its own facts. In none of them, except in this case as above stated, and the case of Heermans v. Robertson, which was an action of ejectment, has the validity of these deeds been called in question. The several cases have been decided upon the assumption or claim of Heermans, that he had valid title, or at least a power in trust ' under said deed, with full power and authority to convey a valid title.

None of the exceptions taken at the circuit in this case, were well taken, and the judgment there rendered should be affirmed.

Present — Mullet, P. J., Smith and Gilbert, JJ.

Mullet, P. J., concurred in the result, but doubted upon the point whether a trust did not exist in respect to'the personal property, which was irrevocable by Fellows.

Judgment affirmed. 
      
       Field v. Mayor of New York, 2 Selden, 188; Anderson v. Van Alen, 12 Johns., 343; Briggs v. Dorr, 19 id., 95; Wilkins v. Batterman, 4 Barb., 50 Meghan v. Mills, 9 Johns., 64.
     
      
       Hollister v. Bender, 1 Hill, 153.
     
      
       4 Lansing, 259.
     