The judgment of the Jefferson County Court is affirmed with costs.
4. Title by Sale Under an Execution.1
13 Ohio, 335. - 1844. [Reported herein at p. 10.]
42 Mississippi, 465. - 1869.
[Reported herein at p. 42.]
1 These sales are regulated by statute. Usually a period of some months is allowed for redemption before the sheriff gives the deed. For the New York
Statute see Code Civ. Proc, §§ 1430 - 1478. Homestead rights are exempt from execution sale, 1d., §§ 1397-1401. - ED.
5. Sales by Guardians, Executors, Administrators, Etc.1
13 Pickering (Mass.), 154. - 1832. [Reported herein at p. 24.]
6 Iredell's Equity (N. C), 524. - 1850.
[Reported herein at p. 70.]
6. Sales by Judicial Decree.
8 Wendell (N. Y.), 584. - 1832. [Reported herein at p. 197.]2
7. Tax Sales.3
III. From individuals by voluntary alienation inter vivos. 1. Common Law Conveyances.
b. Secondary. 5
1 Executors may be empowered by the will to sell. In all other cases they can sell only when duly authorized by the proper court. New York Code Civ. Proc, §§ 2749-2801. For the N. Y. statutory proceeding for the disposition of the real property of an infant, lunatic, idiot or habitual drunkard, see Code Civ. Pro., §§ 2345-2364. - Ed.
2 In many States a sale on foreclosure does not cut off the equity of redemption until the expiration of a certain time (fixed by statute) after the sale has taken place. - Ed.
3 These are regulated wholly by statute. See for New York the "Tax Law " of 1896. - Ed.
4 These are feoffment, gift, grant, lease, exchange and partition. - Ed.
5 These are release, confirmation, surrender, assignment and defeasance. Examples of many of the forms of common law conveyances will be found in the cases already reported. - Ed.
2. Conveyances Operating Under the Statute of Uses,1
71 New York, 345. - 1877.
Earl, J. - The appellant Thompson, the purchaser, at a mortgage foreclosure sale, seeks to be released from his purchase upon the claim that the proceedings in the foreclosure action above entitled, are so defective as not to give him a good title. He insists upon several defects, but one of which it will be necessary to consider, and that is, that a judgment-creditor of William B. Slocum should have been made a party to the action. Hiram Slocum died seised of the mortgaged premises subject to the mortgage. He left a will in which he devised his estate, including these premises, to his executors upon trust that they should divide the same into three parts; and, as to one-third part, he provided as follows: "I direct my said trustees to permit and suffer my son William B. Slocum to have, receive and take the rents, issues and profits thereof for the term of his natural life; and after his decease, I give, devise and bequeath the same part or share to the heirs-at-law of my said son." It is claimed on the part of the plaintiff, that these provisions created a valid, express trust, and hence that the legal title was vested in the trustees, and that the judgment did not become a lien upon the one-third thus devised, and hence that the judgment-creditor was not a necessary party, and this was the view taken in the court below. On the part of Thompson it is claimed that the trust was invalid, and hence that William B. Slocum took a life estate in the land upon which the lien of the judgment attached, and hence that the judgment-creditor should have been made a party, and this claim we believe to be well founded. The trust attempted to be created is a passive one, and condemned by the statute. The trustees had no active duties to discharge. They were not "to receive the rents and profits of lands, and apply them to the use" of William B. Slocum, or to pay them over to him. 1 R. S. 729, § 55. Hut they were directed "to permit and suffer" him "to have, receive, and take the rents" and profits. They had no discretion to exercise. They could not refuse the permission, and they could in no way exercise any control over the rents and profits. That such a trust is condemned by the statute has never been doubted. Parks v. Parks, 9 Paige, 107; Jarvis v. Babcock, 5 Barb. 139; Beek-man v. Bonsor, 23 N. Y. 298, 314, 316. William B. Slocum was entitled to the possession of the land and to the rents and profits thereof, during his life, and hence the statute vests the legal title in him for the same term. 1 R. S. 727, §§ 47, 49; Craig v. Craig, 3 Barb. Chy. 77. It follows, therefore, that the judgment was a lien, and that the life estate was affected thereby, and for this defect the motion should have been granted.1
1 For the origin of these, see p. 854 supra. - Ed.
59 Maine, 137. - 1863. [Reported herein at p. 909.]
4. Modern Transfers.3
a. By deed or by parol ?4
b. Requisites for (and of) a deed of conveyance.
(1.) Competent Parties.6
31 Missouri, 188. - 1860.
Ejectment. - Plaintiff claims under the " Samuel Johnson" certificate which appears to have been assigned to him the same day it was issued - Aug. 19, 1829. The patent was issued on this certificate in 1843. Thomas thereafter brought a suit in equity against 'Samuel Johnson" and obtained a decree vesting Johnson's legal title in him. Service of process in this suit was by order of publication.
1 The above case illustrates the direct form of a conveyance operating under the statute of uses. The practical conveyances of this sort, however, are the covenant to stand seised, the deed of bargain and sale, and the deed of lease and release. Most of these forms of conveyances are now construed as "grants." § 211, N. Y. R. P. L. - Ed.