
    Welch vs. Silliman.
    Where lands were granted to T, in trust for W. his heirs and assigns, by letters patent issued in pursuance of an act of the legislature which provided, that T. should sell the land for not less than $2,50 per acre, apply the proceeds to the support of W. and his family, and after his decease pay the residue if any to his legal representatives ; and by a subsequent act T. was authorized to sell the land for such price as could be obtained therefor, without limitation as to amount: Held, that the latter act was was not unconstitutional, and that under it the trustee might convey without restriction as to price.
    
      Held, also, that the trustee’s power of alienation was not limited to the lifetime of the cestui que trust; and, therefore, that a sale made after the death of the latter, was a valid execution of the trust.
    In this case the letters patent contained a condition avoiding the grant unless an actual settlement should be made upon the land within a given number of years; and after the death of the cestui que trust, the trustee conveyed subject to the same condition, by deed which recited the letters patent: Held, that the heir of the former had no power to avoid the conveyance for a breach of the condition, but that this right could be exercised only by the state, or at most by the trustee or his heirs.
    The case of Welch v. Allen and Silliman, (21 Wend. 147,) commented on and explained.
    Ejectment, tried at the Wayne circuit, in April, 1841, before Moseley, C. Judge. The action was brought to recover a lot of land containing 450 acres, situated in the town of Wolcott, Wayne county. The plaintiff gave in evidence an act of the legislature, passed March 26th, 1802, (Sess. Laws of 1802, p. 198,) which directed the commissioners of the land office to -grant letters patent to M. B. Talmadge, in trust for John Welch, his heirs and assigns, for 450 acres of unappropriated land in the military tract; and provided that Talmadge should sell the lot for not less than $2,50 per acre, and apply the proceeds for the support of Welch and his family, and after his decease, pay the residue, if there should be any, to his legal representatives. The plaintiff also read in evidence letters patent, dated September 16th, 1802, issued in pursuance of said act, granting the premises in question, and containing a condition avoiding the grant unless an actual settlement should be made on the lot, within seven years from the , 1st of January, 1803. It further appeared on the part of the plaintiff, that John Welch died in 1806—that the plaintiff was his sole heir at law—that the lot in question was settled in 1820, and that the defendant was in possession when the suit was commenced. The defendant gave in evidence an act of the legislature, passed April 2d, 1805, (>Sess. Laws of 1805, p. 126, W. Sp iS.,) which, after reciting that the lot in question was situated in a wilderness, &c.—that it could not be sold for the price limited in the former act, and that Welch was of advanced age and dependent upon the proceeds of the lot for his support—authorized the said Talmadge to sell and dispose of the land, at his discretion, in parcels or otherwise, for such price as could be obtained therefor, &c. The defendant also gave in evidence a deed of the lot in question from Talmadge to one Nicholson, dated August 31st, 1806. This deed, which was executed in consideration of $620, recited the acts of 1802 and 1805, and contained a condition that the grant should become void unless an actual settlement should be made on the land within seven years from January 1st, 1803. "A deed from Nicholson to one Depuy, of the lot in question, except 50 acres, was then read in evidence by the defendant, dated March 16th, 1813, and the testimony here closed.
    The plaintiff’s counsel requested the judge to charge, 1. That the trustee had no power to convey for a less price than that fixed by the act of 1802 ; 2. That the deed to Nicholson became void at the expiration of seven years from January 1st, 1803, no evidence having been given of an actual settlement of the land in question within that time; and 3. That the trustee’s authority to convey ceased on the death of Welch, the cestui que trust. Upon the first point the judge charged the jury that under the act of 1802, the trustee could not have sold for less than $2,50 per acre, but that “ if he had any authority under the act of 1805, it was not restricted as to price.” Upon the second point, the judge charged “ that if the deed to Nicholson, were otherwise operative, it would not become inoperative by reason of not making a settlement on the land within the time limited.” The judge charged in respect to the third point, that"Welch having died before the execution of the deed by the trustee to Nicholson, no title passed thereby, and that upon the death of the cestui que trust, the title to the lot in question vested in his heirs. The jury found a verdict for the plaintiff, and the defendant now moved for a new trial upon a case.
    
      G. H. Mwnford, for the defendant.
    
      S. Stevens, for the plaintiff
   By the Court,

Nelson, Ch. J.

There are but two questions involved in this case material to the disposition of it, viz. 1. Whether the act of 1805 was effectual to enable the trustee to sell the premises without restriction as to price; and 3. Whether such conveyance could be made after the death of Welch, the cestui que trust.

It is insisted that the act of 1805 is unconstitutional; but to this I am unable to agree. The grant under the act of 1802 was a bounty from the state, to which it had a right to annex such restrictions and conditions as the legislature saw fit. Accordingly, the exclusive power of sale was conferred upon the trustee, fixing the minimum price per acre. So far, the grant was a qualified one. Neither the trustee, nor the cestui que trust, nor both together, could have aliened without observing the restriction thus imposed. The subsequent act of 1805 simply removed this limitation, and conferred upon the trustee full power of disposition. Instead of'interfering prejudicially with any vested interest or estate which Welch acquired in the premises under the former act, it confirmed and enlarged that already granted, by turning a qualified power of alienation into an absolute one. It was a new and additional gift to the one already made by virtue of the act of 1802; or, in other words, a release by the donor to the donee, of a condition annexed to a previous grant.

The power of sale conferred upon the trustee was not necessarily limited to the lifetime of the cestui que trust, though the act of 1802 contemplated that a sale might or would be made within that period. It provided unqualifiedly, that Talmadge should dispose of the lot for a price not less than $2,50 per acre, apply the proceeds to the support of Welch and his family, and after his decease pay the residue, if any, to his legal representatives. The latter clause was intended merely as a direction for the disposition of the proceeds after the death of Welch, ■ but in no respect conflicts with or limits the power to sell, which is broadly given. It is entirely consistent with a continuance of that power after this period, if not before executed. We held, when this case was' formerly before us, (21 Wend. 147,) it then appearing that the trust had not been executed, that after the death of Welch, inasmuch as the estate was intended exclusively for his benefit and belonged to his legal representatives, it became a mere nominal trust which was executed in the cestui que trust under the 47th section of 1 R. R. 722, 2d ed. But as the trust now appears to have been carried into effect in 1808 by the trustee, this statute has nothing to do with it. We remarked there, that “no sale was contemplated after the death of John Welch.” It would have been more accurate, perhaps, if we had said, the act contemplated that a sale would take place before his death. The provision as to the proceeds after his death, rather looked to a sale in any event by the trustee. Besides, the grant to Talmadge was in trust for Welch his heirs and assigns, for the support of himself and his family ; and therefore, in terms, extends beyond the period of the lifetime of the former. This being coupled with a general power of sale, there can be no doubt, I think, that the deed to Nicholson, after the death of Welch, was a valid execution of the trust.

As to the position that the grant became void on account of the failure to perform the condition subsequent, viz : to make the settlement within seven years—if admitted, it would only show that neither the plaintiff nor defendant had any title to the lot, and that it might become re-invested in the state. But the state must take advantage of this forfeiture, if any one, according to the well settled rule of law. (1 Shep. Touch. Preston's ed. 278 et seq.) It is said, however, that the condition was carried into the deed to Nicholson, and that the heir of the cestui que trust may enter and avoid it for the breach. There are two answers, I think, to this view. The deed to Nicholson recited the act of 1802; and the patent in pursuance thereof, and conveyed the premises, in effect, subject to the condition,contained in the previous grant from the state; leaving, therefore, the question arising out of it, between the state and grantee. This, it appears to me, is the fair import and legal effect of the clause, when taken in connection with the other parts of the conveyance. And, even assuming that the trust were a nominal one in the event of no sale by the trustee, so as to become executed in the cestui que trust in 1830, under 1 R. S. 722, § 47, 2d ed.; yet, as the trustee did in fact convey, until he or his heirs enter for breach of the condition subsequent and become thereby re-invested with the estate, the section cannot operate. Till then, the estate remains in the grantee, and-only a right of action exists in the heirs of Talmadge, who are the parties entitled to enter; (1 Shep. Touch. 285, Preston's ed.;) unless we hold that the 47th section of the statute above referred to, has the effect to transfer this to the cestui que trust, which I think cannot be maintained.

New trial granted.  