
    Cassagne v. Ostrander et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    November 20, 1888.)
    1. Trusts—Creation—Tenancy in Common.
    An agreement between the holders of the bonds secured by a mortgage on land that certain persons therein appointed as their trustees may purchase the' property at the sale under the mortgage, and sell, lease, occupy, and manage it, being at all times accountable for the proper performance of their trust, does not create a several trust for the life of each beneficiary, or other trust authorized by the statutes of New York, and on the purchase of the property by such persons the title vests in the beneficiaries as tenants in common.
    -2. Same—Assignment of Interest—Enforcement in Equity.
    An executed assignment of the interest of one of the beneficiaries, for a consideration paid, will be upheld in equity, though it is not under seal.
    Appeal from special term, Saratoga county.
    Action for partition by Leocadie A. V. Cassagne against James M. Marvin and John Tayler Hall, individually, and, as trustees, etc., James M. Ostrander, .and others. The rights of the parties grow out of the agreement set out in Cassagne v. Marvin, 1 N. Y. Supp, 590. Defendant Ostrander, who was alleged to be a shareholder, answered, denying that under the agreement Eugenia Boche, plaintiff’s assignor, became vested with any legal title in the premises; and averring that a valid trust was created, which vested the title -in the trustees to receive the rents and profits, and pay the shares to the beneficiaries during their respective lives, and which will cease in respect to each beneficiary on his death, and that the title on the death of any beneficiary will vest in his heirs; and further averring that Eugenia Boche is living, and that her interest was inalienable when she attempted to convey to plaintiff, and that plaintiff derived no right or title to the premises. Plaintiff demurred to the answer for not stating facts constituting a defense. The special term :sustained the demurrer, with leave to answer over, and Ostrander appeals.-
    By Rev. St. N. Y. (7th Ed.) p. 2181, § 55, “express trusts may be created for any or either of the following purposes: (1) To sell lands for the benefit ■of creditors; (2) to sell, mortgage, or lease lands for the benefit of legatees, -or for the purpose of satisfying any charge thereon; (3) to receive the rents .and profits of lands, and apply them to the use of any person during the life -of such person, or for any shorter term, subject to the rules prescribed in the first article of this title, [relating to the * Creation and Division of Estates;’] .(4) to receive the rents and profits of lands, and to accumulate Lhe same, for the purposes and within the limits prescribed in the first article of this title.”
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Wm. A. Pierson, for appellant. Pond & Brackett, for respondent.
   Landon, J.

In Cassagne v. Marvin, 1 N. Y. Supp. 590, we expressed the -opinion that the so-called trust created by the instruments set forth in this •complaint is not a valid express trust, since it is not within any of the conditions for which express trusts are authorized by the statute. Further consideration of the agreements, in view of the questions now presented, confirms the views there expressed. It was there intimated that it’ was possible that the trust might be regarded as a several one for the life of each beneficiary, thus rendering the life-estate inalienable by the beneficiary, and the remainder alienable. It- was not necessary for the purposes of the former case to hold that such was the true construction. The appellant asks us to hold*so now. Our present examination leads to the conclusion that such a construction cannot be given to the instruments without doing violence to the plain intent of the parties to them. The result is that the title to the premises is vested in the several beneficiaries or shareholders as tenants in common.

Respecting the assignment by Eugenia Roche to the plaintiff, while the-law requires such assignment to be made with the fórmalities requisite to pass title to real estate, equity, no doubt-, will uphold an executed assignment upon consideration paid, though not under seal. Our examination of the case suggests to us the question, not made upon the argument, and therefore not decided by us, and which may or may not be necessary to be considered before-the final disposition of the case, namely, whether, under the agreements under which Marvin and Hail became the purchasers, they were simply constituted the agents of the owners for the care and disposition of the property, and its income and proceeds, with such a simple power of attorney for the purpose as is exempted from the operation of the Revised Statutes entitled “Of Powers,” (1 Rev. St. marg. p. 738, § 134,) or whether a power in trust was vested in them, (1 Rev. St. marg. p. 729, §§ 58, 59, 74, 108, 119, 135; Heermans v. Burt, 78 N. Y. 259.) RTeither the answer of the defendant nor the brief of his counsel presents this question in either of its aspects. Ho-suggestion is advanced which tends to make the answer any defense to the cause of action alleged in the complaint. We affirm the interlocutory judgment sustaining plaintiff’s demurrer, with costs, with the usual leave to answer on payment of costs. All concur.  