Dorsey v. Courtenay

delivered the opinion of the court, dissenting from the opinions expressed by the county court in all the bills of exceptions.

dissented and delivered the following opi* nion. In this case the lessors of the plaintiff and defendant claim under the same person, Thomas Dorsey, the latter uuder a bond executed by Dorsey in the year 1782, the former under a deed executed by him in the year 1788.

The bond was to the state of Maryland, and under ati act of assembly gave to the state a lien on the land in question, and that bond having been transferred by the state, under another act of assembly, to the defendant, and that act having Vested in her all the interest the state had, (so far as regards the land in controversy,) she became entitled to the lien on the property.

The deed executed in 1788,-conveyed several tracts of land, including the lands in contest, to trustees, for the benefit of certain specified creditors, provided they within six weeks from the date of the deed, assented to receive the trusts raised for their benefit, in full satisfaction of their claims, and if not, so received, then the trustees were to hold the property, subject to the control of the grantor.

It appears to be conceded on the part of the plaintiff that the persons for whose use those original trusts were created, were not to have the benefit of them, except upon their timely assent thereto, and the consequent release of their claims. It would therefore appear to follow, that the plaintiff, claiming under one of those creditors, should establish the due assent and release of that creditor, before he can derive any benefit under the deed. To establish that fact, or to preclude the necessity of its establishment, he produced in evidence a bill filed in chancery by one of those creditors, against the trustees named in the deed, for the conveyance of the land in question, with the proceedings, and the decree passed thereon, directing such ■conveyance to be made. The bill was filed, and the decree obtained long after the expiration of the six weeks.

By the decree the land was directed to be conveyed to the complainant, but he having assigned the decree to the person under whom the plaintiff claims, prior to the con*482veyancé, the conveyance was made to that person, and not, to the complainant.

There is no evidence in the cause to establish the assent and reléase, éxcépt the proceedings in chancery have that fe fleet,. nor is there any thing to exclude the defendant, (claiming indirectly from Thomas Dorsey,) Prom demanding such proof, unless the proceedings in chancery and the deed will do so. The questions then arise, are the proceedings in chancery evidence of those facts? and if not, do they dispense with such proof? and if so, then will the. deed made, nót to the complainant in the causey but to his assignee', transfer tb him the legal title?

The proceedings in chancery having taken place in a cause iti which the defendant was no party, cannot be received to establish any oné fact necessary to be proved in this cause, and therefore it appears the court below erred in permitting them to go in evidence to prove the assent and release to have been obtained indue time: But although the court have erred, yet if the proceedings super-cede the necessity of such proof, the judgment below having been in favour of the plaintiff, such error of itself presents no foundation for the reversal of that judgment.

■ The trustees were not authorized of themselves, to make the conveyances, except on the terms of the trust deed, and yet as the legal title was in them, there it must remain until parted with, even after the expiration of the time specified in the deed, and it is not perceived how they were io be deprived of that legal title, except by a conveyance, or something equivalent thereto. It may, and to me seems to follow, that therefore a conveyance by those trustees to the creditors, even if voluntarily made, without the timely assent and release of their debts, would have vested the legal estate in such creditors. The only effect would have been, that if the assent and release had existed, then the . creditors would have had the legal estate, free from all trusts, if not, then subject to the future trusts of the grantor created by the deed.

To me, then, it appears to follow, that the person, to whose use the trustees did convey, holds the legal estate which they had, unless they were divested of the same by the decree, directing the conveyance to the complainants in the suit in chancery, and not to his assignee.

*483The question then becomes important, did the decree of itself, or by the delay alleged, pass the estate?

Before the act of 1785, ch. 72, there was no mode to compel a conveyance under a decree directing Lt to be made, provided the person would withstand all the process of the court, such person, although deprived by the decree of the equitable estate, could no,t be divested of the legal one. The design of the legislature was to apply a remedy, and that was, by directing that the decree in certain cases should pass the legfd estate. The legislature might, if they had thought proper, Have directed, that the decree in all instances should have had effect? nor does it appear to me that any good reason can be offered, why such was-sot its provision; but such a construction of it, it appears evident to me, does not comport either with its letter or spirit. If the decree of itself, in all instances, passed the estate, then the deed, which the act directs to.be executed,, even when executed, could have no effect, for if the decree passed the estate, nothing remained for the deed to operate on. The legislature then designed, that subsequent proceedings should be had, to give to the decree the operation of a conveyance, and as the defendant could not refuse to convey, until the conveyance was demanded, therefore the demand was necessary, as he could not be charged with neglecting to convey, until asked to convey, the demand therefore must precede the charge of neglect.

Such I have always undeistood to' have been t,he construction of the act of 1785, and indeed I am not sure that the demand must not appear by proof in the court of chancery, and that the refusal or neglect must appear by a subsequent order, or decree of the chancellor, before the conveyance of the legal estate was perfected.

It has been asked, where would be the legal estate if the defendant should die after the decree, and before the conveyance? If I am correct, it would be in his heir, and it would only be a common case, of the legal interest being in one, and the equifahle one in another, and in the same manner as if after a sale of land, and before tiie conveyance, the person who sold, it should have died, his heir Would have the legal estate, and the purchaser or his representative, the equitable one, it would be one of those ^pualtiesj for which perhaps it is impossible to provide.

*484From these remarks then, my opinion is, that the court erred in permitting the proceedings in chancery to go in evidence to prove particular facts, but that they, and the deed by the trustees to the assignee of the complainant, were proper evidence to make out the title of the person under whom the plaintiff claims.

I therefore differ in opinion from the court below, on the second bill of exceptions, but as that was pronounced 'upon irrelevant matter, and not affecting the plaintiff’s right who obtained the judgment, that judgment ought to be affirmed.

The prior lien of the bond can have no effect, on the legal right to the land, the lien did not divest that legal right, and that having been transferred to the lessors of the plaintiff, he was entitled to recover, still (perhaps) holdings it subject to the defendant’s prior equitable right.

judgment reversed, and procedendo awarded.