
    WOODGATE against FLEET.
    
      Commission of Appeals;
    
    December, 1870.
    Former Judgment as Estoppel.—Validity of Trust.—Admissibility of Declarations.— Recitals in Sheriff’s Deed.—Payment by Third Party to Loan Commissioners.
    After the making of a trust deed, the interest of the grantor in the lands attempted to be conveyed, was sold on execution, and, the purchaser having commenced an action of ejectment, the cestuis que trust under the deed obtained a decree in equity, declaring the trust deed to be in force, and restraining the continuance of the ejectment suit. In a subsequent action by such purchaser to have his rights to the property declared, and the priority of the incumbrances thereon determined;—Held, that the former decree was not a bar to a new judgment declaring Tww far the trust deed was valid and what were the interests of the cestuis que trust.
    
    A deed conveyed property, in trust, for the benefit of M. F. and J. K. F., and of any children of the grantor who should thereafter be born; and provided that when J. K. F. came of age, the property . should be divided among the beneficiaries above named, who should be living at that time, in equal proportions, share and share alike, the shares of the after-born children to be held in trust for them until they should come of age.—Held, that the trusts in favor of the after-born children were void, as illegally suspending the power of alienation, and, since there were three such after-born children alive at J. K. F.’s attaining his majority, who would have been entitled, had the trusts been valid, to share in the property equally with J. E. F. and M. F:,—that J. E. F. and M. F. took each one-fifth, and that the" remaining three-fifths reverted to the grantor, on J. E. F.’s attaining majority.
    
      Held,, also, that the grantor’s right of reversion passed by sale of all his interest, on an execution, before J. E. F. attained majority, and before the quantum of interest to revert to him was determined.
    Declarations made by a deceased sheriff, who held the execution on which certain lands were sold, and who made the sale, and gave the deed, tending to show that the execution had been paid before the sale;—Held, inadmissible to impeach the purchaser’s title.
    Where a person not a party to the mortgage in question, made a payment of money to the loan commissioners who held the mortgage, on. receiving from them a written agreement that they would assign it to him, and it apjseared that the commissioners had no authority to assign the mortgage;—Held, that the payment could not be considered as a payment on the mortgage, and that the court would direct the commissioners to foreclose the mortgage, for the benefit of the person making the payment.
    Appeal from a judgment of the supreme court in the second district.
    John H. Woodgate brought this action against Abraham Fleet and his wife, the loan commissioners of Queens county, and Albert Ayres, in order to have his title to certain lands declared, and the priority of the equities in relation thereto decided.
    The facts of the case are as follows :
    On March 4, 1834,. the defendant Abraham Fleet, being the owner in fee of certain lands in the county of Queens, executed a deed of trust between himself of the first part, and James H. Hackett, Sarah Van Lew, and Warren Cornwall of the other part, wherein, in consideration of the love he bore his wife, Martha E. Fleet, and his reputed son, John K. Fleet; then about four years old, and of one hundred dollars, he conveyed the lands in controversy on the following' trusts, as specified in the deed: “That is to say, to receive all the rents, issues, and profits of all the said property and estate hereinbefore mentioned and described, and the same to apply in equal proportions toward the support and maintenance of Martha, the wife of the said party of the first part, and the support and education of John K. Fleet, his said reputed son, and of any children of the said party of the first part, that may hereafter be born of his said wife, with power to invest whatever moneys may remain in the hands of the said parties of the second part, over and above what may be required for the said purposes, in good and profitable securities, for the benefit of said wife and children; and in trust, further, upon the arrival of the said John K. Fleet at the age of twenty-one years, to convey to him and the said Martha (provided she shall be then sole and unmarried), their respective proportions of the said estate, or all the right, title, and interest of the said party of the first part, of, in and to the several lands and premises herein before mentioned and described, such proportions to be determined by the number of children of the said party of the first part, and his said wife, which shall be living at the time the said John K. Fleet shall arrive at twenty-one years of age. It is the express intention of said party of the first part, that all the said hereinbefore described property shall go to and be divided amongst the said Martha, John K., and all lawful children of the said party of the first part, which shall be living at the time the said John K. shall arrive at age, in equal proportions, share and share alike.
    “And further, that in the event of the decease of the said Martha, John K., or either of the said children, the share to which said party would have been entitled shall be equally divided amongst the survivors. And it is farther provided, that if, upon the arrival of the said John K. at the age of twenty-one years, the said Martha shall not be living sole and unmarried, her share or proportion shall continue to be held by the said parties of the second part, their survivors or survivor, in trust, for her and her benefit so long as her husband shall survive ; and as such trustees, the said parties of the second part, shall account with her and pay over to her from time to time such moneys as she may require for her comfortable support and maintenance ; and in case she shall not survive her said husband, her share or proportion of the said estate shall be vested in her heirs. And farther, that the shares of the said children as may be hereafter born as aforesaid, shall be held in trust for them by the said parties of the second part, until said children shall arrive at lawful maturity; and in trust, further, that if at any time before the said John K. shall arrive at age, it shall, in the judgment of the said parties of the second part, become necessary, they shall have the power to convey the said estate hereby conveyed to them, in trust, or any part thereof, and to execute the necessary ' deeds of conveyance therefor, and the proceeds of such sale to apply for the benefit of the several parties for whose benefit this trust is created, in manner as is above mentioned and provided.”
    This deed was acknowledged June 3, and recorded June 4, 1834, in Queens county.
    In July, 1835, the three trustees, by instruments under their, hands and seals, formally renounced the trusts reposed in them by this deed.
    On May 25, 1837, Thomas C. Pinckney recovered a judgment against Abraham Fleet, for two hundred dollars besides costs, which was entered and docketed in Queens county on the same day. On this judgment a writ of execution was issued, returnable on the second Monday of July, 1837.
    On June' 14, 1837, Abraham Fleet and Martha E., his wife, executed a mortgage to Benjamin Albertson and Thomas Whiteson, loan commissioners of Queens county, for four thousand dollars, on the same lands mentioned in the trust deed, which was duly recorded on the same day.
    On October 21, 1837, John H. Woodgate recovered a judgment against Abraham Fleet, for one thousand three hundred and twenty-nine dollars and ninety-three cents, besides costs, by confession of bond and warrant of attorney, on which was due at the time of its entry, six hundred and sixty-four dollars and ninety-three cents, besides costs ; which judgment was on the same day docketed in Queens county. On this judgment a writ of execution was issued, returnable on the first Monday of May, 1838.
    By virtue of the two writs of execution, the sheriff of Queens county levied upon the lands, and on November 24, 1838, he exposed them for sale, at public auction, in due form of law, and sold all the right, title, and interest which Abraham Fleet had therein on May 25 and October 21, 1837, to Woodgate, he being the highest bidder therefor.
    The sheriff thereupon executed and delivered to Woodgate his certificate of sale, and subsequently, on February 24, 1840, executed a deed conveying to him all the right, title, and interest which Abraham Fleet had in these lands, on May 25 and October 21, 1837, or at any time thereafter, which deed was duly acknowledged and recorded on the same day. Woodgate claiming, by virtue of this deed, the title to the land and the right of possession, in April, 1840, commenced an action of ejection against Abraham Fleet and Martha E., his wife.
    Thereupon, and in June, 1841, Martha E. Fleet, John K. Fleet, and the other infant children of Abraham and Martha E., born subsequent to the execution of the trust deed, to wit: Melancthon, Lemuel, and Anna E., Fleet, by their next Mend,—Anna being then “ under the age of one year,”—filed a bill in the- court of chancery, before the vice-chancellor of the first circuit, against Abraham Fleet, James H. Hackett, Sarah Van Lew, James Harriman, George D. Coles and John H. Woodgate, praying, among other things, that the trust deed should be adjudged 'in force, and binding upon the parties thereto, and that new trustees be appointed, and that Woodgate be perpetually enjoined from prosecuting the action of ejectment.
    •To this bill Woodgate answered, setting up his title under the sheriff’s deed. Harriman and Coles answered, claiming a lien by virtue of their mortgage as loan commissioners. The other defendants named in the bill suffered default. Thereupon such proceedings were had before the vice-chancellor, and on March S3, 1843, it was, among other things, adjudged that the deed of trust was well executed and proved, and a good and valid deed of trust for the joint lives of Martha E. Fleet and J ohn K. Fleet, and as to a moiety of the rents and profits of the real estate in the deed of trust conveyed, for the life of the survivor of them, and chat- the trusts thereof to that extent be carried into execution ; the deed of trust to be void upon the death of Martha E. or John K. for a moiety of the said rents and profits, and, upon the death of both of them, wholly, and that the injunction granted against John H. Woodgate, on the filing the bill, be made perpetual during the period of the joint lives of Martha E. and J ohn K. Fleet, and during the life of the survivor of them, for a moiety as above expressed. That new trustees be appointed to perform the trusts in the deed to the extent above declared, in the place of the trustees named in the deed. That the mortgage to the commissioners of loans be established as a good and valid lien until paid off and discharged.
    On October 7, 1846, Abraham Ayres paid to Jarvis Jackson and Peter Lyster, at that time loan commissioners, three thousand six hundred and fifty dollars toward the purchase of the four thousand dollar mortgage, under a written instrument, signed by the loan commissioners, whereby they assigned to him an interest in the mortgage to that extent, and agreed to assign to him the mortgage absolutely whenever he should pay them the balance due upon it.
    On February 16, 1854, John K. Fleet, having attained his majority, executed to Woodgate a deed conveying to him all his interest and title in the lands in question, which deed was acknowledged and recorded on the same day.
    In May, 1854, Ayres commenced an action in the supreme court against Abraham Fleet and Martha E. Fleet, his wife, the loan commissioners then in office, and those who made the agreement with him, Wood-gate not being a party. In the complaint in that action the plaintiff therein set up the facts as to the mortgage and the payment of three thousand six hundred and fifty dollars to the loan commissioners, and prayed, among other things, that it be adjudged that the sum was not a payment upon the mortgage, and that the loan commissioners be at liberty to foreclose the mortgage for the full amount due thereon, and that they refund to him the sum so paid. It was finally adjudged in that action that the whole principal sum was due upon the mortgage with some interest; that the loan commissioners had the right to foreclose it for the sum so due; that they should proceed to foreclose the same," and out of the money realized on such foreclosure they should, after deducting their costs and expenses and the amount due the State, pay to Ayres the sum of three thousand six hundred and fifty dollars.
    
      Thereafter the loan commissioners advertised the lands for sale, under their mortgage, on the first Tuesday of February, 1855, claiming the entire sum of four thousand dollars, besides interest, to be due. On December 11, 1854, Woodgate tendered the loan commissioners the sum of three hundred and fifty dollars and interest, claiming that to be the balance due upon the mortgage; but they refused to accept the tender, claiming the whole amount to be due.
    Whereupon Woodgate commenced this action, setting up in his complaint, among other things, the facts above stated, and praying relief in substance, as follows :
    1. That the priorities of the different equities may be ascertained.
    
      2. That it may be decreed how much money is due on the mortgage, and that the plaintiff, Woodgate, may be permitted to come in and pay the same.
    3. That if the mortgage be decreed a lien, Harriman and Rushmore may be decreed to satisfy it on payment of the same by plaintiff, Woodgate.
    4. That defendants be restrained from further proceedings to foreclose and sell.
    5. That Ayres be restrained from further proceed-. ings in his action in relation to the amount claimed by him.
    6. That if the loan commissioners be allowed to proceed, it be decreed what estate they sell.
    
      7. That new trustees be appointed under the trust deed, and that such trustees be let into possession of the premises, to manage or lease the same, and to account to plaintiff, from time to time, for his share.
    A decision on demurrer is reported in 9 Abb. Pr., 222.
    
    The defendants all afterward answered, setting up in substance the following defenses, viz. :
    
      1. That Woodgate’s title, under the execution sale, was fully examined and adjudicated upon in the chancery suit before the vice-chancellor, and his decision fully settled and determined the rights under the trust deed ; and tha,t the loan commissioners’ mortgage was held to be a valid lien on the premises in question, superior to his title under his execution sale ; and. that .the Pickney execution had been paid.
    
      2. That the loan commissioners agreed to sell to Abraham Ayres the mortgage in question, who paid on account of principal three thousand six hundred and ■ fifty dollars, and on account of interest three hundred and fifty dollars ; and that under such agreement, and also an adjudication of the court thereon, in a suit commenced by Ayres against the loan commissioners, Ayres was entitled to four thousand dollars of the proceeds of the mortgage sale; and that the loan commissioners had a right to sell the same, and out of the proceeds of the sale to pay Ayres, and to pay the balance due them.
    3. That as to the title from John K. Fleet, Wood-gate acquired nothing, because John K. Fleet was defrauded into giving that deed-; and he had no right to alien his life interest.
    4. That the loan commissioners, in good faith, loaned the four thousand dollars, and the moneys were applied in taking up two prior mortgages amounting to two thousand three hundred dollars, and the balance in repairing the property in question, long before, the recovery of the Pinckney judgment, under which Wood-gate claims title.
    The cause was tried at" special term, and it was adjudged in substance as follows :
    That the trust deed conveyed to the trustees therein named the entire interest and estate of Abraham Fleet, the grantor, in the real estate therein described, until John K. Fleet, his reputed son, then an infant,, should arrive at lawful age.
    
      That John K. Fleet, upon his arrival at the age of twenty-one years, was entitled to the one-fifth part of the real estate in fee.
    That one other fifth part thereof was to be held in trust for the benefit of the defendant, Martha E. Fleet, the wife of Abraham Fleet, during the life of her husband ; and after his death, should she him survive, then it would go to her in fee, and that upon her decease before her husband, such one-fifth would belong and go ■to her children, or heirs-at-law.
    That the provision in the trust deed, purporting to ■convey estates to the after-born children of Abraham K. Fleet, and his wife, being eventually three-fifths of the premises, was void, as it might, if valid, suspend the powzer of alienation beyond the legal period.
    That Abraham Fleet, consequently, retained the reversion of the remaining three-fifths, and which, in the events that had happened, reverted to him or his ■assigns, upon the arrival of John K. Fleet at the age ■of twenty-one years, in August, 1853, subject, however, to the mortgage mentioned.
    That the mortgage to the loan commissioners was a lien, of three-fifths of which Abraham Fleet held the reversion.
    That this three-fifths might be sold by such commissioners to enforce the payment of the moneys thereby •secured.
    That the Pinckney judgment was paid before the sheriff’s sale, and that the plaintiff would have otherwise been concluded from claiming under it, by the decree in the equity suit.
    That the plaintiff, as purchaser at the sheriff’s sale, acquired the interest of Abraham Fleet in the remaining three-fifths, subject to the mortgage.
    That by the deed from John K. Fleet, Woodgate acquired one-fifth of the premises in fee. 1
    That the full amount of the mortgage might be collected by the commissioners or their successors in office, as the payment by Ayres was upon an agreement to transfer and not to reduce the amount of the mortgage, and no such transfer could be legally made, and the right to collect the same had been formally recognized by a judgment of the court.
    That the commissioners, upon a sale of the real estate, that is to say, of three-fifths of the mortgaged premises, as above authorized, must pay out of the moneys arising therefrom:
    1. The amount of the principal money remaining unpaid to them as such commissioners, viz : three hundred and fifty dollars, with interest now due and unpaid thereon, and until the same shall be paid, and also the costs and expenses of sale allowed by law.
    
      2. To Abraham Ayres three thousand six hundred and fifty dollars, being the amount paid by him to the commissioners on account of the purchase of the mortgage, without interest, and the residue, if any (after deducting therefrom and paying thereout the value of the inchoate dower of the defendant, Martha E. Fleet, in such residue), to the plaintiff, Woodgate.
    That the mortgage to the commissioners continued a lien on three-fifths of the real estate for the whole amount secured to be paid thereby ; and that subject thereto, and to the inchoate right of dower of Martha E. Fleet, the plaintiff, Woodgate, acquired as purchaser at the sheriff’s sale the reversionary estate of Abraham K. Fleet in and to the same.
    That the commissioners be directed to use all diligence to collect the whole amount of money secured to be paid by the mortgage ; and for that purpose to enforce the payment thereof by a sale of three undivided fifths of the real estate, pursuant to the statute, and out of the moneys arising from the sale thereof, to pay as above provided.
    
      That the commissioners be enjoined and- forbidden to interfere with, or sell, the remaining two-fifths.
    That Woodgate, as grantee of John K. Fleet, be let ■ into immediate possession and enjoyment of the one undivided fifth part of the premises.
    That upon a sale and conveyance of the three-fifths part by the commissioners or their successors in office, pursuant to the statute, the same should operate as a fall bar of any estate or claim in or to so much thereof, of or by any of the parties to this suit,. or any claiming under them.
    That the plaintiff, on payment of the amounts so decreed to be paid to the loan commissioners, and to the defendant Ayres, within thirty days after notice of judgment, or in case of appeal within thirty days after affirmance thereof, be let into possession of the three-fifths part of the premises, as his own property in fee, but subject to the dower right of Martha E. Fleet; as to which, if asserted, he is to retain a right of subrogation under the mortgage, and Martha E. Fleet is to be allowed for any just offsets she may hereafter have for matters arising after the entry of this decree.
    From this judgment the plaintiff appealed to the court at general term, where it was affirmed; the following opinion being delivered.
    
      
       In 1863 the court of appeals, in Downing v. Marshall, held that where a power of sale given'to executors, is void only as to beneficiaries entitled to a small part of the proceeds, it may be upheld as to the entire property, the heir being entitled to take such share of the proceeds, on the exercise of the power.
    
   Emott, J.

1. The learned judge before whom this cause was tried, found as a fact, upon what I consider sufficient evidence, that the judgment in favor of Pinckney against Fleet was paid, before the sale by the sheriff of Queens county, in 1838. This renders it unL necessary to consider whether the decree in the suit in the court of chancery was conclusive against the right of the plaintiff to allege a title derived trom this judgment, against the mortgage made to the loan commissioners. It will be observed that the judgment of Pinckney was subsequent to the trust deed, and, that being established, the importance of the question whether the sheriff’s sale was made upon the two judgments or only upon one, is in its effect upon the mortgage given to the loan commissioners.

2. The Pinckney judgment being out of the way, the loan office mortgage is prior in time to the plaintiff1’s title, and the inquiry then becomes necessary, to what extent or amount, and in favor of whom it can be enforced, and upon what part or share of the land in question it is a lien. The money which the commissioners received on account of this mortgage did not proceed directly or indirectly from the mortgagor. It was not intended to be and was not a payment upon the mortgage, but it was paid to these officers for and in order to a purchase of the mortgage or of some interest in it. The assignment which they undertook to make was wholly inéffectual and void, for want of authority on their part. The title and interest in the mortgage consequently remained in them, and the money belonged to Ayres, the person advancing it. It did hot operate as a payment or satisfaction of the mortgage, not having been paid or .received with any such design. If the mortgage remained intact, it was only equitable that the mortgagees should account to Ayres for what he had advanced, and inforce the security for his benefit pro tanto, and it was immaterial to. the mortgagor, or those claiming under him, to whom the money belonged or should go. The judgment in the present action exempts the share or interest which John K. Fleet had and conveyed in these lands from the lien of the mortgage, and in that particular the plaintiff cannot complain of the decision.

The third question in the case is, what are the rights and interests of the parties and cestuis que trust, under the trust deed? I agree with Judge Steokg- that the opinion of the assistant vice-chancellor on this point, and the decree entered under his direction, so far as it declares these rights, was erroneous. If that decree is not conclusive and final, I agree that the plaintiff has no ground of complaint with the judgment directed by Judge Strong. But I am strongly impressed with the conviction that this question was decided in the chancery suit, and must be treated as res adjudicaba between these parties:" The object of that suit was to stay the ejectment which had been brought on a title subsequent to the trust deed, to have that deed declared valid, and to have trustees appointed to execute the trust.

All these things were done. The deed was declared valid to a certain extent and void for all beyond it, and trustees were appointed who are to carry out and execute the trusts as declared. It seems to me that the construction of the trusts, and the indication of those which were valid and the contrary, were within the scope of the suit, and the decree cannot now be questioned. If this be so the present judgment should be modified.

My associates, however, do not concur in this view of this part of the case. They consider the suit in chancery as not involving necessarily the construction of the deed or the declaration of the trusts, and they agree with Judge Strong that the questions arising upon this part of the case are open and unadjudicated.

It is therefore the conclusion of the majority of the court that the judgment must be affirmed, with costs.

The plaintiff then appealed to the court of appeals. After appealing, he died, and Mary Woodgate and Thomas Forster, his executors, were substituted.

Dennis McMahon, for appellants.

William J. Cogswell, for respondents.

Earl, Commissioner.

The appellants claim that the decree in the chancery suit before the vice-chancellor is conclusive as to the true construction of the trust deed, and the force and effect which it is to have. With considerable doubt and hesitation I have come to the conclusion that this claim is not well founded. There is so much confusion in the papers and evidence that it is quite difficult to determine how far the decree in that suit should estop the parties in this.

The main object of that suit, so far as concerned Woodgate, was to stay him in the prosecution of his ejectment suit; and it was sufficient for the complainants to show rights and equities that entitled them to the injunction prayed for. When the court found that the trust deed was so far valid as to give them such rights and equities, it was unnecessary to go farther. When the complainants established that the deed was properly executed and was in force, notwithstanding the renunciation and reconveyance of the trustees, and that the deed conveyed trusts so far valid as to entitle the trustees or cestuis que trust to the possession of the lands, they had established all that was necessary to entitle them to a decree against Woodgate. If the court gave a wrong reason for its judgment, or placed it upon unnecessary grounds, the parties would not be estopped as to such reasons and grounds in any other suit.' The bill did not pray for a construction of the deed, and that does not seem to have been a matter of controversy and discussion on the trial. All the grounds upon which Woodgate-defended that suit are stated in his points submitted to the vice-chancellor, as follows:

“1st. The trust deed was made without any consideration passing between the parties.
“ 2nd. That it was made by the grantor with, a fraudulent intent, he being indebted at the time, and to protect the property against creditors, and is therefore void
‘13rd. The trustees never accepted of the trust, which was made without their knowledge or consent in any way ; and as contracting parties it must be with their assent.
“4th. The deed of the trustees is not to be met by the declarations of witnesses ; it is a solemn instrument under seal.
‘£ 5th. The • trust deed not having been legally executed and delivered in due form of law, and being made by the defendants fraudulently, and without the privity or consent of the trustees, who refused to accept it when it came to their knowledge, did not vest the fee in them, but the same remained in the grantor, and was subject to be sold under execution, &c.
“ 6th. The trustees had the power to reconvey by their deed, and did so, and the property was then in the original grantor, Abraham K. Fleet.
“7th. The defendant, Woodgate, purchased the property at sheriff’s sale, under an execution, &c., against Fleet, and received the sheriff’s deed, by which he became vested with the whole right, title, and interest of Fleet, and now claims to be entitled to the possession of the same.”

The questions raised by these points were necessarily involved in the litigation, and as to all these questions the parties were undoubtedly estopped by the decree in that suit. But the general construction of the trust deed, except so far as I have already indicated, was not necessarily involved in that litigation, and the decision or opinion of the vice-chancellor thereon should not estop the parties in this suit.

A judgment is conclusive upon the parties thereto only in respect to the grounds covered by it, and the law and facts necessary to uphold it; and, although a decree, in express terms, purports to affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference thereto (People v. Johnson, 38 N. Y., 63).

The only claim made before us on the part of the appellants, either in the points or oral argument of their counsel, as to the construction of the trust deed, was that the decision of the vice-chancellor was conclusive. Upon the assumption that it was not conclusive, I do not understand that either party is dissatisfied with the construction given to the deed by the court below; and as there has been no discussion before us upon the question, I shall assume, without the careful examination I would otherwise give, that the construction is correct.

The only other question to be examined is the right of Woodgate under his sheriff’s deed as against the mortgage of the loan commissioners.

The sheriff’s deed purports to be based upon two judgments; one docketed May 25, 1837, in favor of Pinckney against Fleet, before the mortgage to the loan commissioners, and another in favor of Woodgate against Fleet, docketed October 21, 1837, after the said mortgage, and both after the trust deed. The court at special term found that prior to the sheriff’s sale, the Pinckney judgment and execution had been fully paid and satisfied, and hence that plaintiff’s title as to three-fifths of the real estate was subject to the loan commissioners’ mortgage. The payment of this judgment was a controverted question at the trial; and while there was some competent evidence tending to show the payment, it was by no means conclusive. As a portion of the evidence upon this subject, the court received and seemed to rely upon certain declarations of the deceased deputy sheriff who held the execution on that judgment, and who made the sale and gave the deed, tending to show payment of the execution before the sale. This evidence was properly objected to on the part of the defendant, Woodgate, and I do not perceive upon what theory it was admissible. It was mere hearsay. The declarations were no part of any res gesta; and hence, if the deputy sheriff could in any sense be regarded as the agent of the owner of the judgment, they would not be competent evidence against him. They are not competent to contradict the recitals in the deed, and I know of no rule that makes them competent because the declarant is dead'.

It is no answer to this incompetent evidence to say ‘that Woodgate was precluded by the decision of the vice-chancellor from denying that this judgment was paid and satisfied. There was no allegation in the complaint or answer, in the action tried before him, as to the Pinckney judgment. Whether that judgment was paid or not was in no way litigated in that action, and in no way necessary to or involved, in its decision. Hence, upon principles above stated, the decree in that action furnishes no estoppel as to that judgment.

For the reception of this improper evidence the judgment must be reversed and a new trial granted, costs to abide the event.

Leonard, Commissioner.

The most material question in this case is to ascertain the estate (if any), vested in Abraham K. Fleet after his execution of the trust deed to Hackett and others, and at the time of or subsequent to the purchase by John H. Woodgate at the sheriff’s sale under the executions on the judgments against the said Abraham.

If the decree of March, 1843, before the vice-chancellor, must be regarded as res adjudícala, as to the quantum of estate acquired, the question is determined thereby.

The action in which that decree was entered, was brought by Mrs. Martha E. Fleet (the wife), and John K. Fleet and others, children of the said Abraham and Martha, and beneficiaries under the said trust deed, against John H. Woodgate and others, to have the validity of the said trust declared; for the appointment of new trustees, and for an injunction restraining Mr. Woodgate from prosecuting an action of ejectment for the land in question, which he claimed under his title acquired at the sheriff’s sale. The title so acquired was the interest of Abraham K. Fleet.

If any of the trusts contained in the deed to the trustees were valid, no right of possession was acquired by the sheriff’s deed, and the trust deed constituted a bar to the action of ejectment. The complaint of Mrs. Fleet and her children against Mr. Woodgate and others is in evidence, but not the answer of Mr. Woodgate. We are, for want of the answer, without the evidence required to determine the precise issues made by the pleadings in that action. The evidence shows that the controversy turned, in part at least, upon the delivery and acceptance of the trust deed. The validity of the trust provisions were also material to the inquiry, and might have been set up against the title of the trustees. The best evidence we have on the subject, is the points made by the counsel of Mr. Woodgate at the hearing, and these do not indicate that any question was urged as to the validity of the trust provisions. The assistant vice-chancellor did, however, discuss in his opinion, and by the decree which he pronounced, declare the extent or quantity of the estate of the beneficiaries, and the validity of some of the trust provisions, and the invalidity of others, and where the fee finally vested; by which it appeared that no estate, present or future, was vested in Abraham K. Fleet, and the decree perpetually enjoined the prosecution of the action of ejectment.

Judge Stboxg-, before whom the present action was tried, has found, in effect, that the construction of the trust deed, as to the extent of the estates, or interests of the respective beneficiaries, was not in issue before the vice-chancellor, and that in this respect he was limited to the determination of the question whether the provisions were valid so far as to maintain a valid title in the trustees. The judge omits to state the facts from which he draws his legal conclusion, but an examination of the evidence confirms its propriety. The points referred to are the plainest indication afforded us by the evidence. The beneficiaries were not in a condition to litigate the extent of their respective estates, inter sese. It was sufficient for them, if there was any valid trust. It was material for Mr. Woodgate to establish that the trust deed passed no estate, and he was at liberty to urge that the provisions of the trust were void in whole or in part, but there is no evidence that he did so. Judge Stkoxg- holds that the decree of 1843 was final in this respect to the extent only of its “existing efficacy, which required that the beneficiaries had equities which should be protected by an injunction against the operation of the legal estate of Mr. Wood-gate ; ” that the case was open for judgment as to the construction of the provisions of the trust and the extent or quantum of interest of the beneficiaries. The judgment appealed from declares that John K. Fleet took a vested estate at the age of twenty-one in one-fifth ; that the trust continued as to one other fifth during the joint lives of Martha E. Fleet and her said husband; that as to the remaining three-fifths, the reversion remained in Abraham K. Fleet, and vested in possession when John K. Fleet attained his majority, and passed by the sheriff’s deed to Mr. Woodgate, subject to the mortgage to the loan commissioners and to the right of dower of Mrs. Fleet. The invalidity of the trust as to three-fifths of the estate, appears to have been so declared on the ground that the power of alienation was suspended during some portion of the lives of persons not in being at the creation of the trust estate.

In my opinion we should adopt this construction. It carries into effect the intention of the grantor as to the two-fifths of the estate, wherein the trust is held valid. The interest of John K. Fleet, to some extent, according to the effect of this judgment, vested at the creation of the estate. The portion which he would finally take was then unknown, the intention of the grantor having by the deed been declared to be that the “ property shall go to, and be divided amongst, the said Martha (his wife), John K. (his son), and all lawful children of the party of the first part (the grantor) which shall be living at the time the said John K. shall arrive at age, in equal proportions, share and share alike.”

When John K. became of age there were three other children living, born after the execution- of the trust deed, and the said Martha E. was also then living. Pursuing the intention of the grantor, as declared by his deed, John K. was then entitled to one-fifth of the estate in possession. The further provisions of the trust declared “that the shares of the children thereafter born shall be held in trust for them until the said children shall arrive at lawful maturity.” When the vice-chancellor’s decree was made, in 1843, John K. was yet an infant, and the extent or quantum of the estate that would finally belong to him when he became of age was unknown, for the reason that the number of children who would then be living was uncertain. If no other children were living when John K. became of age, he would take a moiety, and the trust would continue for the benefit of Mrs. Fleet, as to the other moiety, if she should be also then living, and no part of the estate would revert to Abraham Fleet. The vice-chancellor correctly held tiiat the trusts were void in favor of unborn children,- to continue till they respectively reached the age of twenty-one, but his views were- erroneous in respect to the persons who were entitled to take by reason of the void provisions in favor of such children. The invalidity of the trust provision for unborn children did not increase the interest of John K. Fleet or of Mrs. Fleet, but to that extent the land would revert to the grantor.

The decision of the vice-chancellor is conclusive that the deed of Abraham Fleet conveyed the legal estate to the trustees. The supreme court were not, however, concluded from harmonizing the provisions of the judgment in this action with the intentions of the grantor as to the quantity of the estate granted to his wife or for her use, and to the son who was living at the creation of the trust, and that result has been effected.

Three-fifths of the estate reverted to the grantor when John K. Fleet attained his majority. Had not the rights of a judgment creditor intervened, the grantor could have so disposed of this reverted interest or proportion as to have carried into effect his original designs had he continued to be of the same mind. The sheriff’s deed, therefore, takes effect as to the three-fifths of "the estate which reverted to Abraham Fleet.

There is no question that the deed from John K. Fleet also conveyed his one-fifth interest to Mr. Wood-gate.

Some other questions of minor importance were urged by the appellants’ counsel, which I will now consider.

1. Mr. Ayres paid a sum of money to the loan commissioners, toward the purchase of the mortgage to them, and afterward, when one of the commissioners went out of office, his successor applied the amount as a payment on account, and the appellant now urges that this sum was properly so applied; and that it was erroneous to hold that the whole amount of the mortgage remained unsatisfied.

The mortgage was never assigned, and the commissioners had no power to sell or assign it. It was a mistake to enter the money as a payment. That was not the purpose for which Mr. Ayres paid the money. He was in no way liable for the debt; and it was a mistake of the commissioners to receive it as upon an agreement of purchase which they had no authority to enter into. Heither Abraham Fleet nor Mr. Woodgate are entitled to any benefit from the money, nor was it paid on behalf of them, or either of them. The decree properly provides, on this state of facts, that the loan commissioners shall collect the whole sum due on the mortgage, and repay to Mr. Ayres the sum so received from him.

2. It is further urged by the appellant that the evidence of Mr. Cogswell and of Mr. Warner, as to what the deputy sheriff stated, in respect to the payment of the Pinckney execution, was inadmissible, and has had some influence on the judge below, affecting his finding that the judgment on which the execution issued was paid before the sheriff’s sale to Mr. Woodgate.

This evidence was improperly admitted. The deputy sheriff was dead at. the time of the trial, but that did not authorize his declarations to be given in evidence. The declarations of a former owner of land, since deceased, against his own interest, have been admitted as evidence against his successors in estate, but that is not the relation here. I am not aware of any ground upon which this evidence can be legally sustained. It did not prove payment any more than the recitals of the sheriff’s deed proved non-payment. It is probable that the learned judge would have reached^ the same conclusion from other evidence. It is said that Mr. Woodgate did not set up the Pinckney judgment as a foundation of the sheriff’s sale, or of his title to the land in the suit before the vice-chancellor, when it would have cut off the mortgage to the loan commissioners. It would not be unfair to infer from the omission to set it up, when it would have affected his interest so favorably, that he could not, with truth, do so,- or that the evidence then existed to prove its payment. Mr. Pinckney also gave some evidence tending to show that the judgment was paid. But the judge states that he has found the fact of payment, in part, on the evidence of Cogswell and Warner, and I think we cannot for that reason hold that their evidence was immaterial.

' Upon the ground last mentioned alone, I think that we must order a new trial.

Judgment reversed and new trial ordered, costs to abide the event.

Lott, Ch. Com., having been of counsel, toon no part.  