« ForrigeFortsett »
from debt, when it is induced by no fraudulent motive, when it makes no more than a reasonable provision for the wife, when it confers any benefit on her, I can conceive of no reason why a court of equity should decline to uphold it. Though the grant may not contain every provision which a chancellor would direct to be inserted in a settlement ordered by himself, though it contains reservations tending to impair the full benefit of the provision made for the wife, yet if the grant confer any substantial benefit on the woman, so long as she is in the actual enjoyment of that benefit, a court of equity should and will protect her.
Again, complainant's counsel, whilst they admit that a husband may, by direct conveyance to his wife, make a provision for her which will be enforced in equity, whilst they substantially admit that the provision made by Clifton for his wife was reasonable, whilst they admit that the grants made by him are not void, simply because of the powers reserved in them, yet they somehow insist that all these things combined vitiate the deeds. Their contention is that, as the legal title remained in the husband, notwithstanding the alleged conveyances, and that as this legal title is coupled with absolute dominion over the property, as a
apointed and qualified, the judge or
legal consequence of the reserved powers, the *
whole right and property remained in the husband, and passed on his bankruptcy to his assignee. But if, as we have seen, the husband may make a conveyance to his wife which will be upheld in equity; if, as we have also seen, the reservation of a power of revocation or of new appointment does not render such settlement void, it is impossible to conceive that the union of the two particulars in the same instrument would destroy it. It is inconceivable that the mere union of two objections, each of which is a phantom, can render the compound substantial.
It must not be overlooked that complainant himself has appealed to a court of equity. In this court Mrs. Clifton's title is as complete as if she had been a feme sole when the conveyances were made to her. The husband's right and interest are not recognized in this court. Every argument, therefore, which is founded on the notion that any substantial title or interest remains in him can have no force in this forum.
The last proposition of complainant's counsel is that by operation of the bankruptcy act the property embraced in these settlements, or at least the powers therein reserved, which might be exercised by the grantor for his own benefit, passed to his assignee in bankruptcy.
We have seen that the title which the bankrupt at the time of his bankruptcy held in the property claimed was held in trust for his wife. Now, by the express terms of the statute, property so held does not pass to the assignee in bankruptcy. Section 5,053 of the Revised Statues provides that "no property held in trust by the bankrupt shall pass by the assignment."
To ascertain what property does pass to the assignee in bankruptcy, reference must be had to sections 5,044 and 5,046. The first of these sections provides that" as soon as the assignee shall be ap
It will be perceived that powers of revocation and powers of appointment, though they be such as may be exercised by the bankrupt for his own benefit, are not enumerated among the things which pass to the assignee either by virtue of the assignment or of the adjudication in bankruptcy. The "power" which is enumerated and does pass, is only the power to sell, manage, dispose of, sue for and recover, or defend the property and rights which do pass.
A power is not property or an estate. A power to convey or appoint property may be lodged in one having no interest whatever in the property over which the power is to be exercised, or in one having an estate or interest in it. But in either case the power is distinct from the estate. It may be that a grant of property to A, to dispose of it as he should please, would invest him with a complete title; but a grant to A for life, with remainder to such persons as he should by deed or will appoint, will not give him the absolute interest, although he might acquire it by the exercise of the power. 1 Sugden on Powers, 120; Maundrill v. Maundrill, 10 Vesey, 246; Reed v. Shergold, 10 Vesey, 371; Burleigh v. Clough, 52 N. H. 272; Collins v. Carlisle's heirs, 7 B. Mon., 13; McGaughey's admr. v. Henry, 15 B. Mon., 383. So a conveyance by A to B and his heirs in trust for A for life, remainder to such persons or uses as A. should appoint, and in default of appointment in trust for C and his heirs, would leave or vest in A a life estate only. Or, if A should convey to B in trust for himself for life, reserving to himself an absolute power of revocation, still A would have only a life estate in the property limited. The power of revocation reserved would neither render the conveyance void nor have the effect of enlarging his estate. The learned judges who decided the case of Willard v. Ware, 10 Allen, 263, certainly so understood the rule, else they need not have troubled them
selves with the perplexing question presented in that case, whether the power of appointment reserved in the deed, which was there the subject of consideration, had been actually exercised.
The bankruptcy statute of 13 Eliz. "enables the commissioners to dispose of any estate for such use, right or title as such offender (bankrupt) then shall have in the same which he may lawfully depart withal." And the statute of 21 James I. directs bankrupt laws to be expounded most favorably for the relief of creditors. I quite agree with Sir Edward Sugden when he says that "as a power is a mere right" to declare the trust of an estate upon which declaration the statute of uses immediately operates, and, as it is therefore clearly a use, interest or right which the bankrupt "may lawfully depart withal," there is considerable ground to contend that the bargain and sale of the commissioner should have the same operation as the execution of the power by the bankrupt whilst solvent would have had, but such was never in fact the construction of these statutes. In Townshend v. Windham, 2 Vesey, Sr. 3, and in Thorpe v. Goodall, 17 Vesey, 338, Lord King is said to have held that in the case of a tenant for life, with power to charge £100, the power was not such an interest as would pass to the assignees.
Holmes v. Coghill, 7 Ves. 498, was thus: Sir John Coghill, under a settlement made by himself in 1757, reserved the power to himself to charge the estate, situate in certain counties, with any sum not exceeding £2,000. Sir John was also entitled to other estates, remainder in tail to his oldest son. The son arrived of age in 1787, and thereafter he and the father suffered a recovery, and then made a settlement. This settlement embraced all or some of the property mentioned in the settlement of 1757. It expressly extinguished the power reserved in the settlement of 1757, but it directed the trustees to raise such sum, not exceeding £2,000, as Sir John should direct, and pay the same to him or his assigns; or, if the same should not be raised and paid over in his lifetime, then upon trust to raise the same at such time and pay the same to such person as Sir John should appoint. By his will, dated in 1775, and therefore before this settlement, Sir John gave the sum of £2,000, to be raised under the power, to be applied to the payment of his debts. There was a codicil to this will which bore date subsequent to the settlement of 1787, but it took no notice of this power. The bill was filed by creditors. Held by the Master of the Rolls, Sir Wm. Grant-First: That the power reserved in the original deed of 1757 was discharged by the deed of 1787. Second: The will refers only to the power reserved in the deed of 1757, and consequently it is no execution of the power reserved in the deed of 1787. Third: There is an evident difference between a power and an absolute right of property.
Fourth Equity will aid the defective execution of a power, but it cannot itself execute a power. The case was affirmed on appeal, 12 Ves. 206. On the appeal it was urged that there is a difference between an estate to be created under a power which must be limited to a third person and one which may be limited to the donor
himself. It was conceded that in the first case the power must be asserted, but in the latter it was strongly insisted that, as the donor had the same power over the estate which he had over his own estate, it should, in equity at least, be equally subject to his debts. But the court rejected the distinction, remarking: "If the argument in support of this appeal prevails, there must be an end of the distinction between the non-execution and the defective execution of a power."
In Thorpe v. Goodale, 17 Ves. 388; s. c. 17 Ves. 460, one who had been adjudged a bankrupt was seized for life of a certain estate, with a general power of appointment, with remainder in default of appointment to the heirs of his body. The suit was by his assignee to compel him to execute the power. Held by Lord Eldon that equity cannot compel the execution of the power. The learned chancellor, it is true, says that the question whether the power passed, by operation of law, to the assignee was not before him, but he refers to the opinion imputed to Lord King in such terms as to show that he approves it. Sir Edward Sugden says, in his work on Powers, vol. 1, p. 225, that upon a bill filed by the assignees against the purchaser in this same case, the Vice Chancellor was of opinion that the power did not pass to the assignee. He cites Thorp v. Frere (N. C., M. T. 1819), but I have not been able to find the case reported.
These decisions doubtless led to the enactment of 6th Geo. IV., 16, 5, 77. This statute provides that "all powers vested in any bankrupt, which may be legally executed for his own benefit (except the right of nomination to any vacant ecclesiastical benefice), may be executed by the assignees for the benefit of creditors in such manner as the bankrupt might have executed the same." A provision substantially the same has, I believe, been incorporated into every bankrupt act which has been passed in England since the date of the above statute, but no similar provision is to be found in our statute, and I must conclude that it was omitted ex industria. It certainly cannot be inferred that the draftsman of our statute was unfamiliar with this provision. It may be found in both of the English bankrupt acts of 1861 and 1869. And we know that many of the provisions in our original and amended acts were copied from these statutes.
But whether it was omitted intentionally or not may not be material. Our statute certainly contains no such provision, and it is impossible to construe it as passing to the assignee anything which the English statutes enacted prior to 6 Geo. IV. were held not to pass.
As the power reserved by the son in his settlements might be exercised for his own benefit, it is clear that if he was a bankrupt in England his assignee, in virtue of the recent statutes there, might exercise the power for the benefit of his creditors; but as we have no such statute here, as a power is neither real nor personal property, nor an estate of any kind, it is equally clear that this power did not pass to his assignee.
I have no doubt that, in respect to the property which does pass under our statute to the assignee, all the power and dominion which the bankrupt
had over it before his bankruptcy likewise passes. Nor have I any doubt that the bankrupt, in virtue of the general provisions of the statute, as well as in virtue of the express terms of section 5050, may be required to execute any instruments, deeds and writings which may be proper to enable the assignee to possess himself fully of the assets; but it is only in respect to the assets of the bankrupt which have passed to the assignee that he can be required to execute any instruments, deeds or writings. He can not be required to execute a mere power, since a power is not assets or property, or embraced among the things and rights which the statute declares shall pass to the assignee.
But, complainant's counsel insist that the justices of the supreme court have given construction to our statute to the effect that it does embrace powers to dispose of or charge property. In proof of this they refer to schedule B, which forms part of every bankrupt's petition, and which schedule was prescribed by the justices under authority of law (section 4490).
It is true that the caption of schedule B implies that the petitioner shall include therein property in reversion, remainder or expectancy, including property held in trust for the petitioner, or subject to any power or right to dispose of or charge." It is also true that the directions in the body of that schedule seem to contemplate that the petitioner shall mention all "rights and powers wherein I (he), or any other person or persons in trust for me (him), or for my (his) benefit have any power to dispose of, charge or exercise.
No one more readily than I would submit to a decision of the supreme court; but I can not regard this schedule, though nominally prescribed by its justices, as a decision of the court. The judges can not in this way give an authoritative construction to the statutes.
Besides, the schedule does not purport to be a construction of the statute, nor does it necessarily imply that all the rights enumerated in it will pass to the assignee in bankruptcy. It is true it would seem idle to insert in the schedule anything in which the assignee could have no interest, but the petitioner can not be allowed to judge whether or not a given right or interest will pass to his assignee, and to include or exclude it from his schedule at pleasure. His assignee should be fully informed respecting his estate. He is entitled to have, and should have, all the information which the bankrupt himself has.
This may suggest some explanation of the requisitions contemplated by the form prescribed in the schedule. Certainly the form, in terms, contemplates that the schedule shall include a mere naked power to dispose of or charge property in which the bankrupt never had any interest, and which he could not dispose of or charge for his own benefit. Surely no one would be so bold as to contend that such a power passes in bankruptcy; yet, in my opinion, in view of the decisions in England before referred to, construing bankruptcy acts containing more comprehensive terms than ours, in view of the legislation there declaring that powers which a bankrupt may exercise for his own benefit shall
pass to his assignee in bankruptcy, in view of the terms of our statute and its omissions, there is scarcely more ground for the contention that a power which may be exercised by the donee for his own benefit passes to the assignee, either in virtue of the assignment to him or of the adjudication in bankruptcy, than a power which must be exercised by the donee for the benefit of a stranger. Let an order be entered dismissing the bill with costs.
NOTES OF RECENT DECISIONS.
THE STATUS OF INDIANS AND THEIR OFFSPRING. Ex parte Reynolds. United States District Court, Western District of Arkansas, 18 Alb, L. J. 8. Opinion by PARKER, J.-1. Indians who maintain their tribal relations are the subjects of independent governments, and as such not in the jurisdiction of the United States, within the meaning of the constitution and laws of the United States, because the Indian nations have always been regarded as distinct political communities, between which and our government certain international relations were to be maintained. These relations are established by treaties to the same extent as with foreign powers. They are treated as sovereign communities, possessing and exercising the right of free deliberation and action, but in consideration of protection owing a qualified subjection to the United States. 2. When the members of a tribe of Indians scatter themselves among the citizens of the United States and live among the people of the United States, they are merged in the mass of our people, owing complete allegiance to the government of the United States, and equally with the citizens thereof, subject to the jurisdiction of the courts thereof. 3. The condition of the offspring of a union between a citizen of the United States and one who is not a citizen, e. g., an Indian living with his people in a tribal relation, is that of the father. The status of the child in such case is that of the father. The rule of the common law and of the Roman civil law, as well as of the law of nations, to wit: partus sequiter patrem, prevails in determining the status of the child in such
ACTION BY SURGEON FOR CHARGES-EVIDENCEPRESUMPTION. Wooster v. Paige. Supreme Court of California, 1 Pac. Coast L. J. 324.-1. In an action for a surgeon's fee, where the value of the services is denied and a counterclaim for damages for malpractice is set up, it is proper for the court to instruct the jury, as a matter of law, that the plaintiff was a competent surgeon. 2. In an action for a surgeon's fee, where the value of the services is denied, and a counterclaim for malpractice is set up, the presumption is that the plaintiff's treatment of the case was skillful and "that he was competent for the task which he had undertaken, and did his duty to the best of his ability." 3. A party can testify as an expert in his own behalf. 4. Upon the question of skill in the surgeon, it is competent for him to prove a specific instance of successful trea ment of a different patient for the same disease. 5. In estimating the value of a surgeon's fee, it is not competent for the defendant to prove what other competent surgeons charged for treating the patient during similar periods for the same disease.
COMMON CARRIER-DESTRUCTION BY FIRE-ACT OF GOD. Pennsylvania R. R. v. Fries. Supreme Court of Pennsylvania, 35 Leg. Int. 263. Opinion by PAXSON, J.-A fire which had burned in the woods for several days near Osceola, a town upon the Tyrone and
Clearfield Railway, was, by a wind which suddenly sprung up, carried into the town, and consumed nearly all the buildings, and a large portion of the property of the citizens, as also the cars and property of the railroad company, including cars containing plaintiff's goods, which were standing upon a siding ready to be transported upon a branch road. Held, 1. The wind by which this fire was carried into the town was the act of God, and the company was not responsible for the freight burned. 2. The company was not bound to have an hand extraordinary force on to meet such a contingency. 3. The employees of the company were not bound to disregard the feelings of humanity which prompted them to succor women and children from peril for the purpose of giving their exclusive attention to save the plaintiff's property. 4. The assumption by the shipper of all risks, and the release of the company therefrom, relieves the company from all liability, except for negligence.
NATIONAL BANK-INTEREST.-First Nat. Bank of Mt. Pleasant v. Duncan. United States Circuit Court, Western District of Pennsylvania, 35 Leg. Int. 251. Opinion by Mr. Justice STRONG.-A national bank is entitled to the same privileges, in regard to charging interest, as is extended to state banks of issue in the states in which it has been located.
WHAT CONSTITUTES WHAT ACTS PROVE CHANGE OF DOMICIL. Hindman's Appeal. Supreme Court of Pennsylvania, 5 W. N. 347. Opinion by MERCUR, J.-1. A man's domicil is that place in which he has fixed his habitation, without any present intention of removing therefrom. Vattel's definition of domicil as "a fixed place of residence, with an intention of always staying there," is too limited to apply to the migratory habits of the people of this country. So narrow a construction would deprive a large portion of our people of any domicil, 2. The ascertainment of a man's domicil depends not upon proving certain facts, but whether all the facts and circumstances, taken together, tending to show that a man has his home or domicil in one place, overbalance all the like proofs tending to establish it in another. Abington v. North Bridgewater, 23 Pick. 170, followed. 3. A mere intention to remove permanently, without an actual removal, works no change of domicil; nor does a mere removal from the state without an intention to reside elsewhere. But when a person sells all his land, gives up all his business in the state in which he had lived, takes his movable property with him, and establishes his home in another state, such acts prima facie prove a change of domicil. Vague and uncertain evidence of declarations tending to show a contrary intention, not acted upon, can not remove the legal presumption thus created.
Court, Q. B. Div., 26 W. R. 679. A lease contained a covenant by the lessee not to allow any house on the land demised to be used as a "beershop." The lessee carried on the trade of a grocer in a house on the demised premises in partnership with his brother. The brother took out an excise license to sell beer at the house by retail, to be consumed off the premises, and did so sell beer there. Held, a breach of the covenant.
· EXPIRATION OF TERM - GOODWILL INCLUDED IN "PROPERTY AND EFFECTS."— Reynolds v. Bullock. English High Court, Chy. Div., 26 W. R. 678. The defendant had taken the plaintiff into partnership, in his business of a chemist and druggist, for a term of twenty-one years. The articles provided that at the expiration of the term a valuation should be made of the property and effects of the copartnership, and the value of the shares therein ascertained, and that all the property and effects of the co-partnership should become the absolute property of the defendant, but subject to the payment of the debts, and the plaintiff's share in the property and effects. Upon an action for account: Held, that upon the authority of Hall v. Barrows, 12 W. R. 322, 4 De G. J. & S. 150, and in the absence of any negative stipulation, the good-will was an asset of the co-partnership, and must be valued, and the value of the shares therein ascertained.
EJECTMENT-ESTOPPEL IN PASS-LIMITATIONS.— McArthur v. Eagleson. Queen's Bench of Ontario, 14 Canada L. J. 219. Plaintiff intending to return after a short interval, left his wife and home more than 30 years ago, and went to the United States, where he remained until a short time before this action. He had never communicated with his wife or friends whilst absent, and was, until his return, two or three years ago, believed to be dead. Several years since, and within seven years after his departure, his wife, acting on this belief, married again, and lived with her new husband on plaintiff's farm. They both mortgaged the farm to a building society, which sold it under a power of sale in the mortgage. On his return plaintiff brought ejectment against the purchaser from the company. Held, that he was entitled to recover, and that however culpable he may have been in not communicating with his wife, his negligence did not, even as against a purchaser under the bona fide belief that he was dead, estop him from claiming the land. Held, also (WILSON, J., dissenting), that he was not barred by the statute of limitations, for the possession of his wife was his possession.
EQUITABLE ASSIGNMENT - ORDER ON PROSPECTIVE DEBTOR TO PAY MONEY TO BECOME DUE ON CONTRACT- ADVANCES RY PROSPECTIVE DEBTOR TO ENABLE CONTRACT TO BE COMPLETED. Price v. Bannister. English Court of Appeal, 26 W. R. 670. G had contracted to build a ship for the defendant, to be paid for by four installments. Gowed money to the plaintiff, and before the completion of his contract with the defendant, and when only two installments had been paid, gave the plaintiff an order upon the defendant for the defendant to pay the plaintiff £100 out of the moneys due or to become due to G from the defendant. To enable G to complete bis contract, the defendant subsequently made advances to G to a greater amount than £100, and at the completion of the vessel G had no more to receive on account of the contract. Held, by BRAMWELL and COTTON, L. J.J., diss. BRETT, L. J., that the order was a good equitable assignment of the money when it became due, and that the defendant could not set off advances subsequently made to enable G to complete his contract.
TAXES-ASSESSMENT-CONSTITUTIONALITY.-This was a joint application, made by the South Park commissioners and the county treasurer of Cook county, for judgment for an installment of a special assessment made by the South Park commissioners, pursuant to a statute entitled "An act to enable the corporate authorities of two or more towns, for park purposes, to issue bonds," etc. The only point made by appellant is, that the said act is void because its title shows that the act itself is intended to embrace more than one subject, contrary to section 13 of article 4 of the constitution. Held, by the court, that the said act is not in violation of any constitutional provision, as embracing more than one subject or matters not expressed in its title. The body of the act is germane to the title of the bill. Affirmed. Traynor v. People, and six other cases.
MORTGAGE-FORECLOSURE-POWER OF NATIONAL BANKS TO TAKE MORTGAGE ON REAL ESTATE.-This was a proceeding to foreclose a mortgage. The answer shows that defendant had been the owner of the mortgage property, and had sold it to T, making him an absolute deed for the same. Afterwards defendant, claiming to have been defrauded, induced T to rescind the contract and to reconvey the property to him. But in the meantime T had borrowed money of the National Bank of Mendota, for which he had given a mortgage on the property in question to B, the president of the bank. The point is made by defendant that the mortgage to the president is a mortgage to the bank itself, and as such it is void under the banking act, which, defendant claims, forbids national banks from making loans upon any but personal security. Held, that the mortgage to the president is a mortgage to the bank. As to the question of the power of a national bank to take such a mortgage, SCOTT, J., after reviewing the question at length, says: "The provision declaring upon what security such associations may make current loans, viz., upon personal security, and the subsequent inhibition (in another section of the law) that no mortgage shall be taken on real estate except by way of security for debts previously contracted, must be understood to forbid absolutely such associations making loans upon security afforded by mortgagees on real estate. With the policy of the law on this subject we have nothing to do." Citing Fowler v. Scully, 72 Penn. 456; First National Bank v. National Bank, 2 Otto, 122; Matthews v. Skinker, 62 Mo. 329. Reversed.-Fridley v. Bowen.
BY-LAWS OF VOLUNTARY ASSOCIATION-SUIT BY EXPELLED MEMBER TO RECOVER FEES.-This was a suit by an individual member against a masonic lodge to recover certain moneys paid as initiation fees. The principal facts were these: Plaintiff had been a member in good standing of the lodge prior to June 7, 1873. The lodge had power by its by-laws, to which plaintiff subscribed on becoming a member, by giving the accused ample time and opportunity to defend himself, te expel a member for unmasonic conduct. On the 7th of June, 1873, he was served with a paper charging him with unmasonic conduct, and summoning him to
appear at a certain date. A few days before the date, plaintiff notified the master of the lodge that he could not be present at the time appointed without interfering with his business duties. He was tried in his absence, found guilty, and expelled. The court below gave judgment for the defendant. On appeal this court say: "The fees paid by plaintiff in error were voluntarily paid, and there is no pretense that he was in that respect overreached or in anywise defrauded. It can not be pretended that his expulsion works a rescission of the contract under which the initiation fees were paid, and there is therefore no ground, of which we are aware, upon which the present suit can be maintained. We held, in People ex rel. v. Board of Trade, 80 Ill. 134,that we would not interfere to control the enforcement of the by-laws of merely voluntary associations, such as the defendant in error, but that such organization must be left to enforce their rules and regutions by such means as they may adopt for their government." Affirmed. Robinson v. Yates City Lodge.
TAXES-ASSESSMENT - LEVY-STATUTE.-This proceeding is one instituted and prosecuted by the county collector of Cook County for the collection of certain special assessments, levied by the town of Lake upon the real estate within its bounds. The mode of collection is that pointed out in article 9 of the General Incorporation Act for Cities and Villages, passed in 1872, and incorporated into the Revised Statutes of 1874. Section 168 of that act provides that any city or incorporated town or village may, if it so determine by ordinance, adopt the provisions of this article without adopting the whole of this act; and where it shall have so adopted this article it shall have the right to take all proceedings in this article provided for and have the benefit of all the provisions hereof." It is insisted that the town of Lake is neither a city or village, and that the words, "incorporated town" must be construed to designate an incorporation other than that of a city or village, and that as to such incorporation this provision is unconstitutional, inasmuch as the title of the act limits its subject-matter to cities aad villages, and does not refer to incorporated towns. DICKEY, J., after discussing at length the question at issue, concludes "that the town of Lake was and is a 'village,' in the sense in which that word is used in section 168 of the General Act of 1872, relating to cities and villages; that it therefore is one of the municipal corporations which by that se tion are authorized to avail themselves of the provisions of article 9 of that act." Scholfield, C. J., and Walker, J., dissent, holding that "the 168th section of the chapter, entitled 'cities, villages and towns,' has no application to incorporations like the town of Lake." Judgment affirmed.-Martin v. People, and eight other cases.
JUDGMENT BY DEFAULT-APPLICATION TO BE ALLOWED TO DEFEND WHAT TERMS CAN NOT BE IMPOSED.-On the 21st of December, 1876, the defendant in error caused a judgment to be entered by confession before the clerk of the circuit court in vacation, against the plaintiff in error, upon a promissory note. On the 30th of December, 1876, the defendants in the suit below (now plaintiffs in error) moved the court to set aside the judgment and for leave to plead to the declaration, for the reasons that the judgment was entered for more than the amount due, and there was usury in the loan of the money for which the note was given. Affidavits to substantiate these allegations were filed. Counter-affidavits were also filed. The court ordered plaintiff and defendant each to make calculations of what was due, and then taking the plaintiffs' figures made an order staying the execution and granting leave to the defendants to plead to the plaintiff's declaration, upon the defendants paying into court for plaintiffs' use the sum as computed by plain