Opinion
June Term, 1825.
1. It seems that a trust may be created for the benefit of creditors by a deed of the existence of which they are ignorant, and that their assent to it may be presumed.
2. Yet where the trust is created expressly on the condition that they shall execute the deed by a certain day, and upon such execution certain obligations are imposed on them, they cannot incur the obligation without a performance of the condition.
3. If the creditors never signed the deed, the trust, if it arose at all, was for the benefit of the bargainors, and was such an interest as, under the act of 1812, ch. 830, might be reached by execution.
EJECTMENT, in which title to the premises in question was regularly deduced to David Hay. David Hay conveyed by deed to "Elisha R. Whiting Co.," without naming the persons who composed the company. Whiting alone conveyed to Frederick J. Redfield, Redfield to William Lownes, and Lownes reconveyed to Redfield, who, together with Luron Whiting, describing themselves as the firm of Frederick J. Redfield Co., then conveyed to William Moore, the lessor of the plaintiff.
The defendants exhibited a judgment and execution thereon from Cumberland County court against Frederick J. Redfield Co. in favor of Durkin, Henderson Co., and a sheriff's deed to Philip McRae (who afterwards conveyed a part to the other defendants) for the premises in dispute. The suit of Durkin, Henderson Co. commenced by attachment 11 June, 1817.
On the trial of the cause it appeared that one Wallace Whiting composed the firm of Elisha R. Whiting Co., and it was objected by the defendants that the deed to Whiting Co. conveyed to Wallace as well as Whiting. The objection was overruled, and on this point the jury was instructed that the deed conveyed no interest to any one but Whiting.
The deed from Redfield and L. Whiting to Moore was dated (579) 26 May, 1817, and purported to have been made for the benefit of certain creditors therein named, and of others who should subscribe the deed, and contained, among other things, this clause:
"It is further covenanted, understood, and agreed that this instrument shall remain open to the execution and signatures of all those creditors of the said Redfield and Whiting as shall choose to come in and sign and execute the same previous to the 1st day of August next; and all creditors of the said Redfield and Whiting, under the firm aforesaid, who shall fail to come in and annex their signatures to this instrument, either by themselves or by attorney duly authorized, before the said 1st day of August next, shall be entirely excluded and utterly barred from any participation in the dividend or dividends of the property conveyed by this deed," etc.
It did not appear from the case that any one of the creditors of Redfield Co. had at any time assented to the deed to Moore or signed it, and it was objected by the defendants that as to them the deed was fraudulent and void. The point was reserved on the trial and a verdict was found for the plaintiff, subject to the opinion of the court on the question whether the deed to Moore was fraudulent in law as to defendants or those under whom they claimed, no fraud in fact appearing. The court held that there was nothing on the face of the deed to authorize it to pronounce it fraudulent, and gave judgment for the plaintiff, from which defendant appealed.
The trusts declared in the deed to the plaintiff are that he shall pay all the creditors of Redfield Whiting who shall sign the deed by 1 August, 1817; and there are certain covenants in the deed binding those creditors to divers acts as soon as they have executed the same. Admitting that a trust may be created for the benefit of creditors by a deed of the existence of which they are ignorant, and that their assent to it may be presumed, yet this case is subject to a very different construction, for the trust is created expressly on the condition that they shall execute the deed by a certain day, and then certain (580) obligations are imposed upon them, which surely they never can incur without a performance of the condition. Now, it does not judicially appear that the creditors ever executed the deed, and, of course, William Moore did not become a trustee for them. There are signatures and seals to the deed, but whose they are we have no means of ascertaining.
It results from this view of the case that the trust, if it ever arose, existed only for the benefit of the bargainors, and that the property in the hands of the trustee was liable to their creditors, as they could entitle themselves by legal process, it being such property as is made liable to execution by the act of 1812, ch. 830. There must be a
PER CURIAM. New trial.