Page:Federal Reporter, 1st Series, Volume 7.djvu/582

 brfecea in the' truot amal ■■■ EobBrtson ^?ent into possessioa lioeet^Ms'cohtraCt ofisalb, and after Pellows' death Heer- ijitfUs'ifetoiight ejectruent'to recover poaseasioa of the land. The'iOotiil' held' that, fesaflcedIBg the plaintiflfin the action becartie' seized uiider tiie 'tiMlst' conveyance of an estate in the Mkide in trust for teadiitg, with power of sale, as Fellows was efltitlod tb'receiw to Bis own use all receipts from sale dur- ing hiedife, atid as bis edulld haveoompelled an execution of the tt*ii6t by-a eale, he haviiig,; instead of resorting to acourt Of ieqiiity for'thaf pUBpose, iaade a sale.lhusaccomplishing the' saaie reBult, Eobertsoii', not being in default, was in eqtiity etititled to hQld the pf emises as agailist the plaintiff- Two va the judgea, JPolgeif audRapallo, place their judgment expressly on'the' giotfiid' that, tinder his coutract with Fellows,, itobertsoll -eStablished 'afl equitable defence to the action.. Three of the 'judgeaj'Mlefti Andrews, and Miller, go fnrther,. and hold that no express trust waB'ci-eatedby the instrument to corne into. efffict at: the, death of Fellows; and, although they do nbt decide th'e point, strongly indicate it to be their jieyf tiiat^ no express tr^ust is.declared in the instrument foV any ,of the.purposesfQr which, by the law in New York, such trusts maybe created. Earl, J., dissented, and was of the- opinion that the conveyance vested in Heermans the legal title upon a valid trust. ', ,.,, i �i.In Fellaivs v^ Heermans, supra, H waSiheld by the supreme court of New York, one of the judges dissenting, that if the pro- vision in the deed of October lOth, with regard to sale of tHe lands, was= inoperative as a trust, the provision for renting the landS and ■ applying the avails would, nevertheless, stand as a vaM trust tt) receivethe rents and profits; and, further, that the cdnveyance contained a valid power in trust. �It is te be berne in mindthat these decisions are based upon a construction ef the statute of New York, and although the opinions of the judges inflieate that they had many doubts %s to the operativeeffect that should be given to the. convey- ance in question, I think it a fair deduction from the decis- ions thatj in New Yorkjithis instrument could not be upheld ��� �