Trask v. Green

• Citation: 9 Mich. 358
• Court: Supreme Court of Michigan
• Decision Date: 19 November 1861
• Parties: William E. Trask v. George B. Green and others

9 Mich. 358

William E. Trask v. George B. Green and others

Supreme Court of Michigan

November 19, 1861

Heard October 24, 1861; October 25, 1861 [Syllabus Material]

Appeal in chancery from Wayne circuit. The case is fully stated in the opinion.

Decree of the court, dismissing the bill, affirmed.

Levi Bishop, for complainant:

It is a familiar principle that conveyances in this country derive their force and effect from the statute of uses: 27 Henry VIII., c. 10. By force of this statute, as embodied in the laws of Michigan by the Revised Statutes of 1846--which was declaratory of the existing uses, while at the same time providing for such as might be created in the future--Green and Skinner were seized of the land to the use of the bank the real owner. The legal seizin and possession were in the bank, and only the naked form of title in Green and Skinner 17 Johns. 351. This legal seizin and possession were subject to attachment and execution: Comp. L., §§ 4747, 3119, 3155; Ibid, § 9; 17 Johns. 351. This position does not require us to controvert the general doctrine, that a naked equity can not be sold on execution, for here is something more than a mere equity in the land, in favor of creditors of the bank.

A debtor will not be permitted to place his effects in the hands of others, and by that means bid his creditors defiance: 20 Johns. 564. Either a legal or equitable seizin may be sold on execution (4 Cow. 599); any estate within the statute of uses (9 Cow. 73, 80); lands bought and paid for, but not yet conveyed: 1 Fost. 347; 10 Conn. 137; 11 Conn. 369; 1 Johns. Ch., 52; 17 Johns. 351; 3 Johns. 216; 2 Wend. 570; 4 Wend. 462; 18 Wend. 236; 2 Har. and J., 301; 1 Dev. and Bat., 119; 3 Kelly 5; 5 S. and M., 499; 3 Ind. 129; 23 Mo. 579, 588; Lalor, 181; 3 Jones (Law), 537. Equity will even aid a levy where the purchase and equity are not complete: 23 Mis. 54.

C. I. Walker, for defendants Green and Skinner:

Admitting, for the sake of the argument, that Davis continued to hold the title for the bank in the same way that Campbell and Rufus Emerson did, still the bank had no attachable interest in the land. Purely equitable interests are not subject to execution unless by statute: 1 Greenl. Cruise, tit. xi, ch. ii, § 26; Ibid., tit. xii, ch. ii, § 37; 8 East, 469; 1 Paige 315; 13 Pet. 298; 2 Atk. 292; 1 Ired. 537; 2 McLean 298. Certain trust estates were made subject to execution by statute 29 Charles II., c. 3, § 10, which has been adopted in some of the states by express enactment, but not in force except where specially adopted. See 1 Greenl. Cruise, tit. xii, ch. ii, § 31, note; 4 Kent 309, note; 3 Johns. 216; 2 Wend. 570; 19 Wend. 414; 5 Denio 223; 5 S. and M., 506; 23 Mo. 579; 8 Rich. (Law), 392; 2 Leigh 280; 3 T. B. Monr., 159; 2 Blackf. 431; 3 Ind. 129; 1 Yerg. 1; 1 Hemps. 491; 15 Ill. 95; 3 Kelly 11. But even then a mere equity is not subject to execution: 17 Johns. 352; 7 Johns. Ch., 52; 5 Cow. 487. Nor, as would seem, any trust unless it is raised by and described in the conveyance: 1 Yerg. 113; 3 T. B. Monr., 159. In some states, indeed, equities are subject to execution by the force of a long settled usage, a local common law: 4 N. H., 404; 17 Conn. 282.

The statute 29 Charles II., c. 3, § 10, was never in force here, but if it had been, would have been repealed by the territorial act of September 16, 1810.

But our statute of uses and trusts, if then in force, would not have helped complainant. Under the statute, had the deed been fraudulent as to creditors, the trust would be raised in favor of the creditor; not to the debtor, or in his favor. There would be no attachable interest in him: 15 N. Y., 475. See also, 3 Jones (Law), 537; 10 Paige 562; 3 Barb. 573; 2 Peck 507; 3 Met. 26; 1 Ired. 553; 2 Rich. 624; 15 Ala. 412; 16 Ohio 469. The principle of these cases is recognized in 3 Mich. 509.

The statute of uses of 27 Henry VIII., c. 10, did not operate upon implied trusts resulting from the operation of law: 15 N. Y., 477; 5 Denio 225. It did not operate upon parol trusts, except where the conveyance itself might have been by parol, as by feoffment: Shep. Touch., Ch. 9, p. 213; 1 Greenl., Cruise, p. 343, note; 7 Bac. Ab., 92. But that statute was never in force in Michigan. The royal proclamation of October 8, 1763, which introduced English law as the law of the land, included only a small portion of French Canada. The Quebec act of 1774 extended the government of Quebec south to the Ohio, and west to the Mississippi, and restored the French law: Quebec Papers, by Baron Masseres, 79, 87; Cavendish's Debates, 183, and appendix; 1 Smith's Hist. of Canada, app., 48; 1 Murray's British America, 180. A new government was formed in 1791, making Michigan a part of Upper Canada, but previous to 1796 there was no radical change in the real estate law. In 1796, the jurisdiction of the Northwest territory was extended over Michigan, but the statute of uses was never in force in that territory (2 Ohio 339; 7 Ohio 295; 23 Vt. 609); nor ever adopted in Michigan territory or state. See Reporter's note to Galpin v. Abbott, 6 Mich. 28.

Christiancy, J. Martin, Ch. J., Campbell, J., Manning, J. concurred.

OPINION

Christiancy J.:

Admitting the case made by the bill, can the bill be sustained? If not, there is no propriety in discussing the evidence.

Construing the bill in the most favorable light for the complainant, the case is substantially this:

The complainant is a creditor of the bank of Windsor (in the state of Vermont), which became insolvent in 1838. Thomas Emerson, being largely indebted to the bank, and being the equitable owner of the undivided half of a farm in the county of Wayne, Michigan, the legal title to which stood in the name of Curtis Emerson and Royal H. Waller, turned out to the bank, among other property, this equitable interest as security for a part of such indebtedness, giving a bond with sureties that the property thus turned out should produce to the bank the sum of twenty thousand dollars. Curtis Emerson and R. H. Waller soon after (January, 1839) conveyed the legal title to Rufus Emerson and Edward R. Campbell, who were directors and agents of the bank, but who took in their individual names, and without, so far as appears, any declaration of trust on the face of the deed, or by any written instrument; though the conveyance was in fact made in pursuance of, and for the purpose of carrying into effect the arrangement made with the bank by said Thomas Emerson; the effect of the whole being to place in the bank and Rufus Emerson and Edward R. Campbell, when acting in concert, the power to sell these lands, and apply the proceeds towards the payment of Thomas Emerson's indebtedness.

Afterwards, in a suit brought by Thomas Emerson in chancery, in the state of Vermont, against the bank, in reference to the securities or property so turned out, Carlos Coolidge was appointed receiver, and these securities were ordered to be sold, in such manner as to secure the interests both of the bank and said Thomas Emerson; but the receiver, on the 13th day of August, 1845, under the direction of, and by collusion with the officers of the bank, made a pretended sale of the interest of the bank in these lands to one Reuben Davis, for a very small sum, which, if paid at all, was paid by the bank; Davis being the agent of the bank, and taking the receiver's deed in his own name, but really in secret trust for the bank, and for the purpose of defrauding both Thomas Emerson and the creditors of the bank. In pursuance of this sale, and to carry it into effect, and with the like fraudulent intent, said Rufus Emerson and Edward R. Campbell, who held the legal title as above mentioned, on the next day conveyed the land to said Davis, thus making Davis the apparent owner, while he in fact took the title only for the benefit and on behalf of the bank.

The title, so far as it appeared of record, remained in Davis until the recording of his deed to Green & Skinner, mentioned below, on the 30th day of July, 1857. In the mean time, on the 27th day of May, 1857, the complainant, for the purpose of enforcing payment of his debt against the bank, commenced his suit in attachment in the circuit court for the county of Wayne, in this state, against the bank as a foreign corporation, and on the same day caused the land to be seized on the writ of attachment; by which he claims a legal and equitable lien for the payment of the judgment subsequently obtained in the attachment suit.

But, as now appears by the record in the registry of deeds, Davis, by deed dated the 7th day of May, 1857 (before the attachment), conveyed the lands to the defendants Green & Skinner, which deed, however, was not recorded till July 30th, 1857.

Green & Skinner are alleged to have been, at the time of the execution of this deed, the agents and directors of the bank, and to have taken their deed with full notice of the facts, without the payment of any consideration, and in secret trust for the bank.

No process in the attachment suit was served upon the bank, and it never appeared in the cause; but the complainant proceeded to judgment under the attachment law, and on the 28th day of September, 1857, obtained judgment for the sum of $ 3,602.76. Execution has been issued upon this judgment, and a levy made upon the lands.

The complainant files his bill in aid of this execution insisting that the real title and beneficial interest in the land are vested in the bank; that the deeds from the receiver to Davis, and from Davis to Green & Skinner, are fraudulent, and operate as a cloud upon the title, which he asks to have removed as an obstacle to the sale; and prays that the premises may be decreed to be sold by the sheriff on the...