Anstice, administrator, &c. vs. Brown and others, 6 Paige Ch. 448

The Chancellor. The proofs in the case conclusively establish the fact that Brown and his partner were employed to collect the partnership debt due to Cock & Crowder, and that a conveyance of these four lots was taken for their benefit, by Brown and his then partner, in part payment of that debt. It is also evident from the letter of February 1804, that the conveyance was taken in the name of Brown without any previous instructions or authority for that purpose from Cock & Crowder.

It was not, therefore, strictly speaking, a resulting trust, which would in equity result to the state and not to the aliens, according to the decision of this court in Leggett v. Dubois, (5 Paige’s Rep. 114.) The act being unauthorized, this court would not suffer the agent to keep the property under such circumstances, or permit it to be forfeited by raising a resulting trust in equity in favor of the state.

The proper course in such a case, as the aliens could not take and hold the land itself as real estate, would be to decree a sale thereof, and compel the agent who held the legal estate to execute a conveyance to the purchaser; and thus give to the beneficial owners the proceeds of such sale as personal estate. This case, however, does not depend upon the operation of a resulting trust, or even upon the equitable power of this court to convert an agent, who has exceeded his authority, into a trustee by implication.

There can be no resulting trust where there is an axpress trust declared and evidenced by the written declaration of the trustee, And the several letters of Brown & Burnett, and of Brown alone, subsequent to the date of the deed from Johnson, when taken together contain a perfect declaration on the part of Brown that he held the legal title in trust to sell the lands and convert them into personalty, as soon as practicable, for the use of the firm of Cock & Crowder.

Upon the principle of equitable conversion, therefore, these lands must in equity be considered as personal property belonging to the partnership, the proceeds of which, when sold, could be taken and held by the surviving partner, although he was an alien. A devise or conveyance of lands to a citizen in trust to sell the same as soon as practicable and pay over the proceeds of the sale to an alien is not invalid, as the principle of public policy which prohibits an alien from holding lands here without the consent of the state does not apply to such a case. (Craig v. Leslie, 3 Wheat.

Rep. 563.) Whether the rule of law on this subject has been changed in this state, as to future devises, by the provision of the revised statutes declaring the devise of any interest in real property to an alien void, is a question not necessary to be now considered, as it has no application to this case. This trust was not created by devise and it had descended upon the heirs of Brown, and had been executed by a sale of the land, before the revised statutes went into operation. This case, as respects the proceeds of the land belonging to the aliens, differs from that of Leggett v.

Dubois, as there was no intention of the parties in this case to retain the property as real estate in evasion of the law, but merely to secure the debt and to convert the land into money. In the case referred to, the object was that the trustee should take and hold the real estate permanently for the benefit of Sellon the alien, the power to sell and pay off incumbrances being only to be exercised in case he did nof pay them out of the rents, &c.

The vice chancellor was clearly right in the conclusion at which he arrived in the present case, that the heirs of Brown took the legal estate in the four Holland patent lots, charged with the trust to sell the land for the benefit of the firm of Cock & Crowder.

Having executed that part of the trust, although without any knowledge of its existence, they held the proceeds of the sale for the benefit of the surviving partner, as personal property belonging to the firm, at the time of filing of this bill 5 and it now belongs to the complainant as his personal representative, to be disposed of by him according to equity in closing up the partnership concerns. The defendants have no valid defence on account of lapse of time.

There being an express trust to sell the lands and pay over the proceeds, there was no act of limitation which was applicable to the case before the sales were actually made. The bill was filed within twenty years after the last letter of Brown admitting the trust, and within six years after the first sale in 1823.

And the heirs having resisted the claim in opposition to the written evidence of their father’s letters, showing the trust beyond all possibility of doubt, and having endeavored to defeat the complainant upon a mere technical objection on the ground of alienage, contrary to the obvious justice of the case, I think the vice chancellor was right in not allowing them costs. The decree appealed from is therefore affirmed with costs.

The master must, in taking the account, allow to the complainant interest from the date of the appeal, upon the balance in the hands of the appellants, as damages awarded to him by this court for the injury and delay caused by the appeal.