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On the contrary supposition, that the estate of Robert Forsythe, under the deed of trust to Arthur, was subject at law to the lien of the appellant's judgment, their title still must fail. Prior to the enactment of 1 & 2 Vict. c. 110, it was settled in England that at law a judgment against the party having a power of appointment, with the estate vested in him until and in default of appointment, was defeated by the subsequent execution of the power in favor of a mortgagee. Doe v. Jones, 10 Barn & C. 459; Tunstall v. Trappes, 3 Sim. 300. And it was held to be immaterial that the purchaser had notice of the judgment, (Eaton v. Sanxter, 6 Sim. 517;) or that a portion of the purchase money was set aside as an indemnity against it. Skeeles v. Shearly, 8 Sim. 153; S. C. on appeal, 3 Mylne & C. 112. In this case Sir JOHN LEACH, the vice-chancellor, decided that the effect of the transmission of the estate by appointment was that the appointee takes it in the same manner as if it had been limited to him by the deed under which the appointer takes in default of appointinent, and consequently free and disconnected from any interest, that the appointer had in the tenements in default of appointment; that as the appointee is in no sense the assignee of the appointer, he cannot be af-* fected by judgments which affect only the estate and interest of the appointer, and, that being so, the circumstance of his having notice of such judgments is immaterial. The statute of 1 & 2 Vict. c. 110, altered the law in this respect by making judgments an actual charge on the debtor's property, where he has at the time the judgment is entered up, or at any time afterwards, any disposing power over it which he might, without the assent of any other person, exercise for his own benefit, so that it would continue to bind the property, notwithstanding any appointment. 2 Sugd. Powers, (7th Lond. Ed.) 33; Burton, Real Prop. (8th Lond. Ed.) 283; Hotham v. Somerville, 9 Beav. 63. In Illinois the definition of that real estate which is made subject at law to the lien of judgments, was enlarged by the act of July 1, 1872, (Hurd's Rev. St. 1883, p. 676,) so as to include "all legal and equitable rights and interests therein and thereto;" but the rights of the parties in this suit are not affected by it, and must be governed by the principles of the common law in force when they became fixed. It is, indeed, a rule well established in England, and recognized in this country, that where a person has a general power of appointment, either by deed or by will, and executes this power, the property appointed is deemed, in equity, part of his assets, and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees. This rule is stated by Mr. Justice GRAY in Clapp v. Ingraham, 126 Mass. 200, to have had its origin, perhaps, in a decree of Lord SOMERS, affirmed by the house of lords, in a case in which the person executing the power had, in effect, reserved the power to himself in granting away the estate. Thompson v. Towne, Prec. Ch. 52; S. C. 2 Vern. 319. But it was frequently afterwards applied to cases of the execution of a general power of appointment by will of property of which the donee had never any ownership or control during life. In re Harvey's Estate, L. R. 13 Ch. Div. 216. That doctrine, however, has no application in the present case for several reasons. The appellants did not seek such relief in equity as against the*es-* tate created by the exercise of the power of appointment by Robert Forsythe, but claimed a lien at law upon the antecedent estate, which that exercise of the power had displaced and defeated. At the time when that might have been done, their judgment had ceased to be a debt against him by reason of his discharge in bankruptcy, and the appointees, Corwith and Cochrane, were not volunteers, but purchasers for value.
It is further said, however, that the bankruptcy itself cut off the power of appointment in Forsythe. If so, it passed to the assignee in bankruptcy for the benefit of the estate and its general creditors, was exercised by the sale at which Wallace became the purchaser, and vested in him a complete title by virtue of the appointment, displacing and defeating the limitations under
the original deed of trust to Arthur, and then passed to the appellees by virtue of the conveyance from Wallace to Scoville. But it was held in Jones v. Clifton, 101 U. S. 225, that such a power of appointment does not pass to an assignee in bankruptcy of the person in whom the power resides. The case of White v. McPheeters, 75 Mo. 286, cited and relied on by counsel for appellants, does not decide the only question involved here. That case arose under the Missouri statute, which appears to be broader than that of Illinois in its definition of real estate subject to seizure and sale on executions at law; and was, in fact, a proceeding in equity by a creditors' bill to subject the estate, which was subject to the power of appointment, and had been conveyed to a volunteer in pursuance thereof, to the satisfaction of judgments.
On the whole case, we are of opinion that the decree of the circuit court was correct, and it is accordingly affirmed.
(112 U. S. 433)
MIDDLETON . INHABITANTS OF THE TOWNSHIP OF MULLICA, COUNTY OF
(December 8, 1884.)
TOWNSHIP BONDS-BOUNTIES TO VOLUNTEERS-NEW JERSEY STatute.
An act of the legislature of New Jersey construed, to the effect that it authorized certain township officers to execute bonds for the township to raise money for bounties to volunteers.
In Error to the Circuit Court of the United States for the District of New Jersey.
F. Carroll Brewster and F. Carroll Brewster, Jr., for plaintiff in error. Peter L. Voorhees, for defendant, in error.
BRADLEY, J. This is an action of debt brought in the court below to*recover the amount of six bonds (or alleged bonds) of the township of Mullica, in the county of Atlantic and state of New Jersey, one being for $500 and the others for $1,000 each. The declaration also contains the common money counts. A copy of the instruments sued on was annexed to the declaration, all being in the following form:
"UNITED STATES OF AMERICA, STATE OF NEW JERSEY.
"[Bond No. 146.]
"The township of Mullica, county of Atlantic, acknowledge themselves indebted to Samuel Crowley in the sum of one thousand dollars, lawful money of the United States; which sum they promise to pay to the said Samuel Crowley, or to his order, two years after date hereof, with interest at the rate of six per centum per annum, payable annually, the aforesaid sum of one thousand dollars having been borrowed of said Samuel Crowley, by order of said township committee, pursuant to a resolution passed January 1, 1864; interest payable at the State Bank at Camden.
"In witness whereof, the said township committee have caused this bond to be sealed with their seal, and attested by the signatures of their president and clerk, this thirty-first day of December, A. D. one thousand eight hundred and sixty-four.
U. S. Revenue Stamp, 50 cents.]
"EDW'D T. MCKEAN, Clerk.
By one series of counts (six in number) these instruments were severally declared on as the writings obligatory of the township, sealed with its seal,
Date of Bond. Dec'r 31, 1864.
and made payable and delivered to Crowley, as agent of the township, to as sist it in passing away and transferring the bonds to raise money thereon for its use and benefit. In another series of counts (also six in number) the instruments are severally declared on as orders of the township, made by its authorized agents, Henderson, president, and McKean, clerk, of the township committee, and made payable to Crowley, as the agent of the township, to pass them away and raise money on them for the township. All the counts" averred that Crowley indorsed and delivered the bonds or orders to the plaintiff. The defendant pleaded non est factum to the first six counts, (those in which the instruments were declared on as bonds,) and nil debet to the others, and the statute of limitations (of six years) to all of them.
At the trial, the plaintiff proved the execution of the bonds by Henderson, president, and McKean, clerk, of the township committee, and the indorsement of them by Crowley to the plaintiff; and also put in evidence a book, called the defendant's bond-book, produced by the defendant on the call of the plaintiff, and having the following heading: "Issue of bonds by the township of Mullica in pursuance of a resolution adopted January 1, 1864." At page 7 plaintiff read the following list of bonds:
To show that the bonds were executed by lawful authority, the plaintiff read two acts of the legislature of New Jersey. The first (approved March 4, 1864) was entitled "An act to legalize certain acts of the township of Mullica, in the county of Atlantic, relative to raising money to pay bounty to volunteers and to provide for the payment of the same," and recited and enacted as follows:
"Whereas, the inhabitants of the township of Mullica, in the county of Atlantic, did on the first day of January, Anno Domini eighteen hundred and sixty-four, vote to pay a bounty of two hundred and twenty-five dollars to each person volunteering to fill the quota of said township under the calls of the president of the United States, (the said quota being thirty-four;) and whereas, the said inhabitants having no authority, under the laws of the state, to offer said bounty or borrow money for the payment of the same; therefore:
"1. Be it enacted by the senate and general assembly of the state of New Jersey, that the said township of Mullica be authorized to provide for the payment of said bounties the sum of seven thousand six hundred and fifty dollars, and the interest thereon, by the issuing of their bonds, or township orders, bearing interest at the rate of six per centum per annum, and payable at such times as the township committee of said township may determine: provided, that not less than fifteen hundred nor more than twenty-five hundred dollars shall be raised for the purpose of paying said bonds or orders in any one year, including the interest thereon.
"2. And be it enacted, that the acts and doings of the township committee and of the inhabitants of the said township of Mullica, mentioned in the first section of this act, to raise seven thousand six hundred and fifty dollars, and the interest thereon, to pay bounties to volunteers as aforesaid, to fill the quota of the said township, are valid in all respects, and binding upon the inhabitants and taxable property of said township."
The other act is not material to the case and need not be recited. Upon the evidence thus presented the court below ruled out the bonds and directed a
verdict for the defendant, and the plaintiff excepted. The question raised by the bill of exeptions is whether this direction was erroneous; and this involves the question whether the officers who executed the bonds had any authority to do so. An examination of the organic laws of the state of New Jersey shows that the inhabitants of the several townships in the different counties are corporate bodies, being authorized, at their annual or special town meetings, "to vote, grant, and raise such sum or sums of money for the maintenance and support of the poor; the building and repairing of pounds; the opening, making, working, etc., of roads; the destruction of noxious wild animals and birds; for running and ascertaining the lines, and prosecuting or defending the common rights, of such township; and for other necessary charges and legal objects and purposes thereof as are or shall be by law expressly vested in the inhabitants of the several townships of this state by this or some other act of the legislature." They are also authorized, at their annual meetings, to elect a clerk, assessors, collectors, commissioners of appeal in matter of taxes, chosen freeholders to represent the township in the county board, surveyors of highways, overseers of the poor, constables, and a judge of election; and in addition to these officers, all having their appropriate duties to perform, they are also, by special provision, authorized "to elect five judicious. freeholders, resident within the township, who shall be denominated the township committee, a majority of whom shall be a quorum, and shall continue in office one year and until others are chosen in their stead, which committee shall have authority, and it is hereby rendered their duty, to examine, inspect, and report to the annual or other town meetings the accounts and vouchers of the township officers, and to superintend the expenditure of any moneys raised by tax for the use of the township, or which may arise from the balance of the accounts of any of the township officers." Besides the duties here specified, the township committee is invested with certain other powers, such as, in certain cases, to fill vacancies in the other township offices caused by death, removal, refusal to serve, etc., and to call special town meetings when they may deem it necessary, but they have no general authority to act for the township. This must be conceded; and it is clearly shown by the cases cited by the counsel for the defendant.
At the same time, it must be admitted that, in view of the peculiar functions and duties of the township committee, they are altogether the most appropriate officers of the township for the performance of such a duty as the issuing of township bonds, whenever such bonds are authorized to be issued, since the township itself has no permanent presiding officer, or head, but only a temporary chairman, called a moderator, who simply presides over the town meeting by which he is appointed. The question then arises, did the act of March 4, 1864, give the township committee authority to issue the bonds in question? If the act is carefully examined it will be seen that it not only ratified the proceedings of the town meeting held on the first of January, 1864, voting a bounty of $250 to each person volunteering to fill the quota of the township, but that it authorized the township to provide for the payment of said bounties by issuing its bonds at 6 per cent. interest, payable at such times as the township committee might determine. It ratified what had been resolved by the town meeting, and authorized the issue of township bonds to carry that resolution into effect. The question then arises, who were the proper persons to issue the bonds? The town meeting itself certainly could not do it. Is it not the plain inference of the statute that the bonds should be issued under the direction and supervision of the township committee, as they were to fix the time of payment, and were the only body which had the general superintendence of the township finances? And here it is proper to notice that the proceedings of the town meeting on the first of January, 1864, were not given in evidence. Of course, the defendants had them in their possession, and could have produced them. We only know so much
(112 U. S. 423)
of said proceedings as is recited in the act of the legislature. It is possible that the town meeting, besides voting the bounties referred to in the act, directed the township committee (as would be natural) to issue the obligations of the township for the purpose of raising the money requisite to pay such bounties. On this point, the bond-book of the township may be entitled to much weight. It professes to exhibit the "Issue of bonds by the township of Mullica in pursuance of a resolution adopted January 1, 1864;" and it enumerates in that category the bonds in question in this suit. That is to say, the township book declares and shows that the bonds in suit were issued in pursuance of a resolution adopted January 1, 1864; and this declaration stood there on the book from 1864, when the bonds were issued, until the trial of the suit in 1871. The resolution thus referred to must, of course, have been part and parcel of the proceedings relating to bounties to be paid to volunteers, which were ratified by the act of March 4, 1864.
Taking all these things together, we are satisfied that, by the said act, which ratified the said proceedings, expressly including (as it does) "the acts and doings of the township committee," as well as of the inhabitants of the township, and authorizing the issue of bonds to carry out their intentions, with such time of payment as the township committee should determine, it was the intention of the legislature to authorize the execution and issue of such bonds by the township committee. There can be little doubt that this conclusion is in accordance with the justice of the case. Money was raised on these bonds. The plaintiff testified that he purchased them for value of Crowley (the payee) and received them from Crowley, or Henderson, or McKean, he could not recollect which. Evidently the township officers were concerned in the transaction. At all events, the plaintiff purchased them and paid for them; and they were duly entered in the township bond-book as bonds of the township, and there can be little doubt that the township reaped the benefit of the transaction. We have no doubt that they are the valid obligations of the township, and that the court below erred in ruling them out, and in directing a verdict for the defendant. They ought, at least, to have been given to the jury under the evidence in the case.
The judgment of the circuit court is reversed, and the case is remanded, with directions to award a venire facias de novo.
RICHARDSON . TRAVER.
(December 8, 1884.)
1. VENDOR AND Vendee-PURCHASE OF SECURITIES-PAYMENT-DISCHARGE OF LIEN. On or about the nineteenth of December, 1870, H. T. and M. T. purchased of D. a tract of land in the city of Chicago, which they afterwards caused to be laid off into blocks and lots. The blocks were numbered 1, 2, and 3. A part of the purchase money was paid by them in cash, and for the balance they executed four joint notes, each for the sum of $5,373.674, payable at different times, with interest, secured by a deed of trust on the property to A. as trustee. Prior to September, 1872, M. T. sold some of the lots, partly for cash and partly on credit. On the fifth of September, 1872, an oral agreement was made, by which M. T. was to take all the cash and notes that had been received from sales, and all the unsold parts of block 2, and all but eight lots of those unsold in block 3, pay the debt to D., and give H. T. all of block 1, and eight lots in block 3, clear of the incumbrance of the trust deed to A. In part execution of this agreement, M. T. at the time conveyed to H. T. his interest in block 1, and in the eight lots in block 3. H. T. did not convey to M. T. until December 20, 1872. On that day, for the consideration of $100, as expressed in the deed, he released and quitclaimed to M. T. in fee-simple all his title and interest in the unsold lots in block 2, and in block 3, except the eight lots which had been conveyed to him by M. T., and at the same time transferred to M. T. all his interest in the moneys and securities which had been received for the lots sold. M. T., finding himself unable to pay the note to D., which became due