
    R. H. Isham and W. S. Wetmore vs. The Delaware, Lackawana, and Western Railroad Company.
    Where lands are conveyed in trust for the benefit of third parties and their children (yet unborn), such trust cannot be revoked or annulled, though the trustee and all the beneficiaries who are in being unite in reconveying the lands to the donor free of the trust.
    Where lauds are held in trust, with power and under a direction contained in the trust deed to sell after a certain time, and in the mean time to lease them and dispose of the rents in a certain way, the trustee cannot sell the lands before the appointed time without breach of trust; and if he attempt so to do, either the sale will be void, or the grantee will hold the property subject to the trust; but it seems that the trustee may confirm the sale after the appointed time for selling has arrived.
    In such case, if the grantee find a new purchaser for the property, and consent that the purchase money be paid into court to abide the disposition of the Chancellor, and if the trustee approve the sale and join in the conveyance, the title of such new purchaser will be valid and free from the trust, and will receive the sanction of the court.
    In December, 1834, Thomas Gibbons Trumbull conveyed to his father, John M. Trumbull, in fee, 235 acres of laud, at Elizabeth Port, in trust, to be leased until April 1st, 1840, and the rents paid to the said Thomas’s two sisters, A. and 8., and after that date to be sold for the highest price they would bring, the proceeds to be invested, the interest paid to said sisters during life, and to their children after their death, until the youngest child should be twenty-one, and then the principal to be paid to the said children in equal parts per capita.
    
    At the time of this conveyance, T. G-. Trumbull received from his father, in part consideration therefor, about $4000; which sum was not, nor was it considered, an adequate consideration for the property. As to the residue, the deed was voluntary on his part.
    In 1836, before A. and S. married, but after they had arrived at full age, they joined with their father, the trustee, in a reconveyance of the land to T. Gr. Trumbull, for the nominal consideration of $12,000, for which amount he gave to his father a bond, secured by a mortgage on part of the land, which bond and mortgage were subject to the same trusts as those contained in the first deed. The residue of the land, not contained in the mortgage, is now valued at $1400 per acre, land having largely increased in value. A. and 8. afterwards married, and now have children, who are made defendants in this cause.
    In 1840, judgments were recovered against T. Gr. Trumbull, and the land was sold under them, and the plantiffs claim title through this sale. In 1854, they entered into articles of agreement with the Delaware and Lackawana and "Western Railroad Company, to sell them a portion of the land not covered by the $12,000 mortgage, and the company having declined to fulfil the agreement, in consequence of the state of the title as above exhibited, the bill in this case was filed to enforce a specific performance.
    
      A. O. ZabrisJde, for the complainants,
    contended—
    I. That the reconveyance to T. Gr. Trumbull had the effect of vesting the property in him free- of the trusts— in other words, had the effect of revoking the trusts.
    
      The daughters joined in the deed, and there were no other parties in being at the time who had any interest whatever in the trusts. Where a trust is made for the benefit of a party without his knowledge, it may be revoked prior to his being communicated with. 2 Story’s Eq. Jur, § 972; Beatson v. Beatson, 12 Simons’ Rep. 281; 2 Spencer’s Eq. Jur. 55, note. It is against the policy of the law to tie up property.
    H. The conveyance is good to transfer the legal title, at all events. The complainants have that; and although the court should decide that the property remains affected by the trusts, and should hold the complainants as trustees, the complainants may sell as such trustees, bringing the money into court, to be disposed of as the court shall think proper.
    III. But the trustee, by keeping the $12,000 mortgage and by other acts, has confirmed the sale to T. G-. Trumbull.
    
      J. P. Bradley, for the defendants,
    contended that the trust could not be altered, varied, or abrogated by any or all of the parties in being, since there were parties then unborn, who have since come into existence, whose interests would be prejudiced thereby; and referred to 2 Spenc. Eq. Jur. 52, 882, 883; Petre v. Espinasse, 2 Myl. & K. 496; Bill v. Cureton, Ib. 503; Newton v. Askew, 11 Beavan 145.
    The cases which hold that a deed of trust for the benefit of creditors may be revoked, if done before any creditor be communicated with, do not apply. In that case, the trust is created for the donor’s own benefit. See Walwyn v. Coutts, 3 Mer. 707; 1 Lead. Ca. in Eq. 199, note; American, note 215.
    Voluntary trusts will in general he enforced, if once constituted. 2 Story, § 973; 1 Lead. Ca. Eq. 199, 214. When voluntary settlements will be set aside in favor of subsequent purchasers of real estate—see 2 Spenc. Eq. Jur. 
      288, 893; Pulvertoft v. Pulvertoft, 18 Ves. 84; Buckle v. Mitchell, 18 Ves. 101; 2 Story’s Eq. Jur. § 425—436, and note (a) to 18 Ves. 84, by Perkins. When set aside as against subsequent creditors — see 2 Spenc. Eq. Jur. 886, note.
    
   W. Pennington,

master, sitting for the Chancellor, who had been counsel for some of the parties before his appointment.

There were cestui que trusts not yet born at the time John M. Trumbull conveyed the property to his son, Thomas Gibbons Trumbull, hereafter mentioned. Neither of the sisters of the said Thomas Gibbons Trumbull, whose children are contemplated by the trust deed, married until after that conveyance.

The important inquiry then is, did the conveyance of 22d July, 1836, from John M. Trumbull and Anna and Sarah Trumbull, the cestui que trusts then in life, convey a good title for the property to Thomas Gibbons Trumbull ?

The question really comes to this, was there any power in the grantor or the trustee to revoke the trusts created ? Having actually conveyed the land, placed it in the hands of a trustee, could that trust be put an end to, or varied by any subsequent act of the grantor ? The plain meaning of the trust was, that no sale of the property was to be made until the year 1840, and after that it should be. Many considerations may induce a grantor to postpone the day of sale of his property, and it is essential that such directions be observed. To say the trustee may sell before that time, is entirely to vary the trust. Nor does it alter the case that the daughters joined in the conveyance. Not to sell until April, 1840, was one of the terms upon which the grant is made, and a trustee cannot be allowed to violate his trust, even though it may be sanctioned by the cestui que trusts in life at the time.

The power of revocation cannot, I think, be claimed upon authorities, when the property has passed by conveyance, and is in the hands of the trustee; and there is quito a discrepancy in them, even when the property has never been passed to the trustee, and is strictly a voluntary conveyance.

Petre v. Espinasse, 2 Myl. & K. 496; Roberts v. Lloyd, 2 Beavan 384; Bycroft v. Christy, 2 Beavan 238; Collison v. Patrick, 2 Keene 123, are all cases supporting the trust, and denying the right in any of the parties to set aside or alter it. A case was cited on the argument, by the counsel of the complainants of Beatson v. Beatson, in 12 Simons 281, which was supposed to take a contrary view of this subject. Upon carefully examining that case, I cannot think it as full on the subject as it was claimed to be, and is certainly very far from controlling the present case.

In that case, a single woman had the power of appointment over a fund, and made a voluntary appointment of it to trustees, without, as the Yice Chancellor expressly states in his opinion, any contract with any human being, and altogether voluntary, not to say grossly absurd; she afterwards made a second appointment to trustees, and came into court with her bill to take the funds out of the hands where they were originally placed, and the court treated the first appointment as a nullity. The principle on which this case proceeds is very similar to that of a debtor who conveys property in trust for the benefit of creditors, to whom the conveyance is not communicated; in such case the debtor may revoke the deed. I take this to be well settled. Acton v. Woodgate, 2 Mylne & Keene 492; 2 Story’s Eq. Jur. 972, note 3, and cases there cited. In Beatson v. Beatson, the appointment was entirely voluntary ; the funds had never been disposed of under the first appointment, but remained in the hands of the original parties, and, under the peculiar circumstances of that case, the first appointment was treated as a nullity, and the decision placed on that ground. I do not see how the conveyance in the case before us can be treated as a nullity, or even as a voluntary conveyance. Besides, the property was legally transferred by a valid deed, duly acknowledged and recorded.

As this deed was made by the trustee before the first of April, 1840, it was, in my opinion, contrary to the express terms of the trust, and did not convey to Thomas Gibbons Trumbull a legal estate:

But it is insisted, by the complainants, that if this be so, still if the conveyance made by the trustee was recognised by the trustee subsequent to the first of April, 1840, and the sale virtually affirmed by him after that period, it vested a good title. My construction of the trust is, that a sale was required, to be made after that period, and at all events, that a sale made after that period would be valid and binding. The complainants insist that there is no fraud in the case; that it was all designed to benefit the parties; that it was in fact a family arrangement; that the sale was for the full value, and that the trustee accepted a full equivalent in the bond and mortgage for $12,000 upon the original trusts; and that the trustee has, by his answer and deposition in this cause, fully confirmed the sale.

My impression is that the general proposition contended for is sound. That the trustee might be called upon to answer any deficiency in the amount of the value of the property between the time of the actual sale and the first of April, 1840, the time when the trust authorized it, would seem to be in all respects just and proper; but there is no pretence that the value of the property during that period increased. Indeed it decreased. No question of this character, therefore, can arise in the case.

But I deem it unnecessary to do more than express my present conviction on that point, as the cause can be, and should, in its present shape and present objects, be decided in a very clear and satisfactory manner. John M. Trumbull, the trustee, has now a full right to convey the property in question. The price offered is adequate, and a deed made under the direction of this court, by the complainants and their wives, joined by the trustee, which ..he proffers himself ready to do, with proper recitals, and bringing the purchase money, or the securities taken therefor, into this court, to be disposed of under the direction of the Chancellor, cannot fail to give the purchasers a perfect title, so far as regards all the questions raised in this suit.

The only object of this suit, as between the complainants and the Delaware, Lackawana, and Western Railroad Company, which is the only question now submitted, is to get a perfect title to them for the property contracted for.

Upon a deed prepared in conformity with this opinion, uniting the complainants and their wives, and John M. Trumbull, the trustee, and bringing the money into court, to abide the order of the court, I respectfully advise the Chancellor that a decree for a specific performance he ordered in favor of the complainants.

As to costs, as the suit has been instituted upon the reasonable requirement of the Delaware, Lackawana, and Western Railroad Company, the decree should be without costs.  