
    Wright v. Douglass.
    
      Declaration of trust. — Statute of Uses. — Attachment.
    A trust may be established, by a recital in a conveyance to which the trustee and cestui que trust are parties ; though the deed to the trustee be absolute in form.
    In such case, if the cestui que trust is entitled to the actual possession, and the receipt of the rents and profits, the estate is executed in him by the statute of uses.
    An attachment against the lands of a foreign corporation need not be served on a mere naked trustee, to whom the same was conveyed upon a passive trust.
    What is a sufficient finding of a sheriff’s sale upon a judgment, in a specia verdict,
    Wright v. Douglass, 10 Barb. 97, reversed.
    Appeal from the general term of the Supreme Court, in the fifth district, where judgment had been entered in favor of the defendant, upon a special verdict. (Reported below, 10 Barb. 97.)
    This was an ejectment to recover the north half of lot No. 130, in George Scriber’s fish-pond, or location, in Constantia, in the county of Oswego. The defendant was in possession at the commencement of the action. On a former trial, there was a verdict and judgment for the plaintiff (3 Barb. 554); which, however, was reversed by this court, and a new trial awarded (2 N. Y. 393).
    *On a second trial, before Geidley, J., the ^ ^ jury found a special verdict, establishing the *- following facts:
    Eben J. Dennis was the common source of title, under whom both parties claimed. On the 23d, October 1837, the Towanda Bank recovered a judgment against Dennis for $2098.43. A. D. W. Bruyn, of the firm of Bruyn & Dana, of Ithiea, was the plaintiff’s attorney of record. An execution was issued on this judgment, by virtue whereof, the sheriff of Oswego county, on the 4th December 1837, sold the lot in question to Bruyn, in the name of the Towanda Bank, for the sum of $1600, and a certificate of sale was made out to the bank. The sheriff made a deed to the Towanda Bank on the 16th December 1845.
    On the 26th June 1843, the plaintiff procured a writ of attachment against the Towanda Bank, as a foreign corporation, to which the sheriff returned, that he had attached the lot in question, but made no mention of service on any other person, as trustee, or otherwise. Judgment was obtained in the attachment-suit on the 18th November 1843, for $1851.69, and an execution issued thereon to the sheriff of Oswego county, which he duly returned, with the following indorsements:
    * 566 1 *“ ^ ™ foU- N. Howe, late sheriff. E. -* Chase, deputy. By sale of real estate.
    “ February 24th, 1844, received payment in full, by purchase of real estate, 500 acres of land, in Oonstantia, sold this day to me, by virtue of the within execution, for $1924. James Wright,
    by Alexander Brooks.”
    At the time of the sale, the sheriff gave the plaintiff a certificate of sale, dated the 24th February 1844; and on the 30th August 1845, the sheriff executed to the plaintiff a deed for the premises. This was the plaintiff’s title.
    The defendant’s title was as follows: On the 4th December 1839, Eben J. Dennis, for the consideration of one dollar, conveyed the lot to Amasa Dana, one of the firm of Bruyn & Dana, the attorneys of the Towanda Bank, with a covenant for quiet enjoyment. This deed was acknowledged on the 2d August 1842, and recorded on the 30th October 1845.
    On the 30th October 1839, the Towanda Bank assigned to Dana the certificate of sale received from the sheriff, upon the sale under its execution against Dennis. This assignment was given without consideration, to enable Dana to receive the title, and make sale of the land for the bank. At the time of the sheriff’s sale to the Towanda Bank, and when the certificate of sale was assigned to Dana, there was a mortgage upon the premises given by Dennis to one McVickar, upon which there was a balance due; this was subsequently paid by the bank, and the mortgage assigned by McVickar to Dana, for the benefit of the Towanda Bank.
    On the 16th ¡November 1839, Dana executed a power of attorney to J. B. Gosman, *his then law- f ^ „ „ partner, and attorney for the Towanda Bank, authorizing him to receive the deed from the sheriff, and to sell and dispose of the land. Gosman went to Oswego, and finding the sheriff absent, procured Dennis to give the deed of the 4th December 1839, in lieu of the sheriff’s deed. This transaction was known to the officers of the bank; and Gosman had charge of the premises for two or three years thereafter, as agent of the Towanda Bank.
    On the 28th June 1843, the Bank of Ithica sued out an attachment against the Towanda Bank, as a foreign corporation, for a debt of $1985.12, which was levied upon the premises in question. The defendant was the cashier of the Bank of Ithica, and he and Dana appeared before the officer in order to procure the attachment. Dana delivered - the writ to the sheriff. The attachment-suit was subsequently discontinued; the Towanda Bank being then indebted to the Bank of Ithica in $1700.
    On the 15th August 1843, prior to the discontinuance of the attachment, a settlement was made between the two institutions, whereby it was agreed, that the lot in question should be conveyed to the defendant, in trust for the payment of the debt due to the Bank of Ithica. Dana executed a deed to the defendant, on the same day, for the premises, no other consideration passing between them. It was an indenture tripartite — Dana being described as party of the first part; the Towanda Bank, by its president, as party of the second part; and the defendant, as cashier of the Bank of Ithica, of the third part. It recited that the land had “ been conveyed to, and the title thereof vested in, the said party of the first part (Dana) as the trustee and for the use of the party of the second part (the Towanda Bank), and that the latter wished and directed the land to be conveyed by Dana to the defendant.” This deed was recorded on the 21st August 1843.
    * 568 1 *^ supreme court, at special term, gave -* judgment for the defendant upon the special verdict; which having been affirmed at general term, the plaintiff took this appeal.
    Collier, for the appellant.
    
      Noxon, for the respondent.
   Ruggles, C. J.

This case comes before us on a special verdict. The first question to be considered, upon the facts found by the jury is, whether the Towanda Bank was the owner of the land in question, when the attachment in favor of the plaintiff against that bank was issued. If the bank was then the owner, having the legal estate, and if the plaintiff’s attachment and proceedings thereon were regular and effectual, the plaintiff’s title is valid. The jury have found, among other things, “ that the said Amasa Dana paid no consideration for the land, the premises in question, and had no interest whatever in the said property or premises, but took the title for the purpose of selling and conveying it for the benefit of the Towanda Bank; and while the said Amasa Dana held the title, in the manner aforesaid, it was held solely for the benefit of the Towanda Bank, and entirely subject to their control.”

The truth of this finding cannot be questioned in this court. We are bound to regard it as found on proper and sufficient evidence, and if we are to indulge in any presumption on the subject, it must be, that the trust was created or declared by deed, as required by the statute. (2 R. S. 134, § 6.)

But if we were at liberty to look into the other facts found by the jury, for the purpose of ascertaining whether Mr. Dana took the sheriff’s certificate and the deed from Dennis, as a passive trustee of the Towanda Bank, we find what, in my opinion, is abundantly sufficient evidence of the fact. I allude to the deed executed by Mr. Dana and the Towanda Bank to the defendant Douglass. In this deed, it is distinctly recited, *that the premises in question had been conveyed to, and the title thereof vested in, Mr. Dana, as the [*569 trustee, and for the use, of the Towanda Bank To my mind, this appears to be a clear and valid declaration of trust, between the trustee and the beneficiary; both were parties to the deed. This, according to my understanding of it, was not the creation of a new trust, at the date of the last-mentioned deed, in August 1843, but a solemn declaration that the trust had, in fact, existed, from the time the premises were conveyed to Dana. These parties, Dana and the Towanda Bank, are bound by the declaration; and so is Douglass, the defendant; they were all parties to the deed containing it. It showed the relation in which, in reality, Dana and the Towanda Bank stood to each other from the beginning. It is of no importance, that the object of that deed was to convey the title to Douglass; nor is it of- any consequence, what effect the declaration had upon the title attempted to be conveyed by that deed. With that deed before their eyes, the jury could have found no other verdict than they did, in relation to the trust on which Dana took the sheriff’s certificate and the deed from Dennis. It was a declaration of trust, by a deed in writing, signed by the party declaring the same; and this is all the statute requires. It was precisely the instrument which the statute requires, to show that the trustee was not the owner of the land, by virtue of conveyances to him, absolute on their face; and this was evidently the reason why the Towanda Bank joined in the deed to Douglass.

The statute prescribes no particular form by which the trust is to be created or declared. Under our former statute in relation to this subject, it was only necessary that the trust should be manifested in writing; and, therefore, letters from the trustee disclosing the trust were sufficient. Such is the law of England. (Stat. 29 Car. II., c. 3, § 7; Forster v. Hale, 3 Ves. jun. 696.) Our present statute requires that the trust should be created or declared by deed or conveyance in writing, subscribed by the party creating or declaring the trust; but it need not be done in the form of a grant; a declaration of trust is not a grant. It may be contained in the M Kvn i reciting Par* of a conveyance; such *a recital * -* in an indenture, is a solemn declaration of the existence of the facts recited, and if the trustee and cestui que trust are parties to the conveyance, the trust is as well and effectually declared in that form, as in any other.

It is established, therefore, by the finding of the jury, that Dana took the assignment of the sheriff’s certificate, and the deed from Dennis, upon a general trust for the Towanda Bank. This was not valid as a trust under § 55 of the statute of trusts, because its object was not one of those specified in that section. It was a passive trust; the Towanda Bank was “entitled to the actual possession of the lands, and the receipt of the rents and profits thereof.” The jury found that Dana held the title solely for the benefit of the Towanda Bank, and entirely subject to their control. Under such circumstances, the effect of the conveyance to Dana is declared by the statute of trusts; the 49th section is as follows: “ Every disposition of lands, whether by deed or devise, hereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of or in trust for such person: and if made to one or more persons for the use of or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee.”

It is not necessary for the purpose of bringing the conveyances to Dana within the operation of this section, that the trust in favor of the bank should have been expressed upon their face. It is enough, that such a trust actually existed and was proved by another deed. The 49th section, therefore, applies, and its effect on the conveyances to Dana was, that they vested in him no title, legal or equitable.

The further effect of these conveyances is declared by the 47th section. “ Every person, who by virtue of any grant, assignment or devise, now is, or hereafter shall be, entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest.” By the verdict of the jury, the Towanda Bank was entitled *to the whole r . I f / i beneficial interest in the lands in question, and to the possession and profits thereof, and this section of the statute vested in the bank the whole legal estate, from the time when the conveyances were executed to Dana. The consequences are, first, that the plaintiff, Wright, could lawfully attach and sell the land as the property of the bank, when his attachment issued; and secondly, that Dana having no interest in the land, either as trustee or otherwise, the service upon him of an attested copy of the attachment was unnecessary.

This view of the case renders it. unnecessary to consider it in any of the other aspects in which it was presented on the argument. It is proper, however, to notice the point made by the defendant’s counsel, that the jury did not find the fact of a sale on Wright’s judgment against the Bank.

The jury found the judgment, execution, sheriff’s return indorsed thereon, “ made in full, by sale of real estate,” and that the sheriff, “ at the time of the sale last-mentioned, gave and executed to the said plaintiff his certificate of such sale, in due form of law, stating such sale and the purchase by the plaintiff,” &c. We think this a sufficient finding of the fact of the sheriff’s sale, although not stated in direct terms. The jury refer to the sale as a fact which had taken place before the sheriff’s certificate was given. The objection is formal merely, and we think, even in that point of view, not well founded.

The judgment of the supreme court ought to be reversed, and judgment entered on the special verdict in favor of the plaintiff, with costs below and costs of the appeal.

Taggart, J.

Most of the questions presented in this case were disposed of by this court when this cause was on a former occasion before it. As was well said in the opinion of the court, then delivered, the rights of the parties are to be determined by the condition of the title of the Towanda Bank to the premises in question, at the time when the attachment, upon which the judgment in favor of the plaintiff was recovered, was served»

*By that decision, it is settled, and cannot now be controverted, that by the sheriff’s sale upon the execution in favor of the Towanda Bank, and the failure to redeem from such sale, all the title and interest which Dennis had in the premises, became vested in that bank; that such interest was subject to levy by virtue of the plaintiff’s attachment; that the plaintiff, by virtue of his proceedings, judgment, execution, sale, and deed given in pursuance of such sale, was authorized to demand the execution of a deed by the sheriff to the Towanda Bank, as evidence of the previous sale to such bank; that equity would have compelled the execution of a deed, under such cicumstances, and if the deed was given, voluntarily, it was equally as effectual as though its execution had been compelled by a court of equity; that it is immaterial, whether it was delivered to the Towanda Bank or not, and sufficient, if delivered to or for the benefit of the party who had legally acquired the whole title of the bank to the premises embraced in the sheriff’s certificate of sale; that upon the fact of the recovery of the two judgments, the sales under and by virtue of the same, the execution and delivery of the two deeds, as set forth in the case, with the additional facts that Dennis had title to the premises at the time of the recovery of the first judgment, and that the defendant was in possession at the time of the commencement of the action, the plaintiff was entitled to recover.

It is further settled, that the deed from Dennis to Dana could convey nothing but his mere legal title, subject to be divested by the subsequent execution and delivery of the sheriff’s deed to the Towanda Bank, provided there is no essential difference in this respect between a quit-claim deed and a deed with a covenant of warranty. I am unable to perceive that there is any essential difference in this respect between a quit-claim deed and a deed with a covenant of warranty. Dennis, by warranting the title, could convey no greater or other title than he then possessed. The only difference there is between the two kinds of deeds, so far as the title is affected, is that a subsequently-acquired title by the grantor, inures to the benefit of the grantee in a warranty deed, but not in quit-claim.

* 573 1 s^a^> therefore, assume it as a matter de- -* cided by this court, that the plaintiff is entitled to recover, unless the assignment of the sheriff’s certificate by the Towanda Bank to Dana, together with the deed from Dana and the bank to the defendant, constitute a bar to the plaintiff’s right to recover.

By 1 R. S. 729, § 58, it is provided, that when an express trust shall be created, for any purpose not enumerated in the preceding sections, no estate shall vest in the trustee; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust. Express trusts may be created for — 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: 4. To receive the rents and profits of lands and accumulate the same. The trust in this case, as recited in the tripartite deed from Dana and the Towanda Bank to the defendant, was expressed as follows, viz., as the trustee and for the use of the party of the second part.” Dana was party of the first part, and the Bank was party of the second part in that deed. The deed contains then a full admission that Dana had no interest in the land, but that the same had been conveyed to and the title thereof vested in him as the trustee of and for the use of the bank. The special verdict finds that Dana took the title for the purpose of selling and conveying it for the benefit of the Towanda Bank, and while he held the title, it was held solely for the benefit of the Towanda Bank, and subject to its control.

It is true, that the assignment from the bank to Dana, is, on its face, an absolute assignment and conveyance, without containing an express declaration of trust; and had there been nothing else for this court to pass upon, in deciding this question, it might have determined, that such assignment and conveyance was within the purview of §§ 51 and 52 of the statute *above ^ cited, and that, therefore, the title of Dana was *- valid as against the bank, and against all persons except creditors of the bank at the time of such conveyance and assignment. But we are to pass upon the facts disclosed by the tripartite deed, and the facts found by the special verdict. With those facts before us, we can draw no other conclusion, than that the trust was an express trust, which might have been contained in some other instrument, executed at the same time, and which formed part of the same transaction. “If several instruments are executed at the same time, between the same parties, and relative to the same matter, they are to be construed as though they were all but one instrument.” (Snow v. Tifft, 15 Johns. 458; Union Bank v. Coster, 3 N. Y. 203; Codington v. Davis, 1 Id. 186.)

The assignment to Dana was an express trust, and was not such a trust as was authorized by the revised statutes. No title, therefore, vested in Dana, but the whole title and interest remained in the bank. The "only effect the assignment to Dana could have, was as an authority to him to execute it as a power; and had he done so, before the plaintiff’s lien attached, it would have divested the bank of any title, and the title to the premises in question would have vested in Dana’s grantee. But Dana never executed the power, until the execution and delivery of the tripartite deed to the defendant. Previous to that time, the plaintiff’s lien attached upon the property, as the property of the bank, and hence, the defendant never acquired any title to the premises in question.

Having arrived at this view of the character and effect of the assignment to Dana, it is unnecessary to decide, whether the deed from Dennis to Dana was inoperative, for the reason that it was not given directly to the bank, or whether the deed to the plaintiff has a preference- over the assignment to Dana, or over the deed from Dennis to Dana, for the reason that they were not recorded.

It is insisted, and was held by the supreme court, that the court never acquired jurisdiction, in the suit commenced by the plaintiff against the Towanda Bank by * 575 1 a^a°limen*) f°r the *reason that no copy of the -1 attachment was served on Dana, the trustee; in pursuance of the provisions of the second section of the act to amend the law in relation to suits against foreign corporations. (1 Laws of 1842, page 227.) That section provides, that the execution of the attachment upon such rights or shares, or trust-property, funds, deposits, moneys or credits, shall be made, by leaving a true and attested copy of the writ, by the officer serving the same, with his proper indorsement thereon, with the cashier of such bank, or with the secretary or clerk of such insurance company, or other company or corporation, or with such individual holding such trust-property, funds, deposits, money or credits.

By the first section of that act, all trust-property, real and personal, was declared to be liable to be attached, in actions at law, and subject to sale or execution, to satisfy any judgment obtained in the suit. The third section makes it the duty of the officer, or other person holding such trust-property, on application, to furnish a description of the amount and nature of the trust-property so holden for such foreign corporation. I think, the second section of the act referred to is not applicable to a case like this. That statute was intended to apply to cases where the trust-property is held by legal and valid trusts, and to subject such property to levy and sale to satisfy judgments in actions at law.

Where, however, the trust is absolutely void, and no estate or interest vests in the trustee, the case is not within either the letter or spirit of the statute. How could the plaintiff in this case have compelled a compliance with the third section of the act ? Dana had not given notice of his trusteeship, by recording the assignment from the bank, and deed from Dennis, and his declaration or other instrument embracing the existence of the trust, and thereby enabled the plaintiff to have applied to him to furnish a description of the amount and nature of the trust-property. The conveyances held by him being absolutely void, except as a power, the legal and equitable title remained in the bank and never vested in Dana.. The plaintiff seized the land by virtue of his attachment, as the property of the *bank, and not as trust-property in the f ^ hands of Dana. He holds the land, not as *- trust-property, but in hostility to the trust, for the reason that the attempt to create a trust had failed, and no estate or interest had passed to the trustee, but the entire interest and control over the property remained in the bank, subject only to the execution of the power by the trustee.

This disposes of all the questions necessary to the decision of this case, and the conclusion at which I have arrived is, that the supreme court erred in rendering judgment upon the special verdict for the defendant. The judgment must, therefore, be reversed, and judgment rendered upon the special verdict for the plaintiff.

Judgment reversed.  