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506 HIGH COURT OF CHANCERY. such a power to include in it, for the purposes of the trust, a power to sell and mortgage, upon the ground that otherwise it might be impracticable to raise the money. Mr. Justice Story says, that this is the doctrine established by the more recent cases in opposition to older decisions, which restricted the power to the mere annual rents and profits. 2 Story Eq., section 1064. And even in cases in which the parties are not wholly with- out remedy, but the interposition of this court is called for, sim- ply for the purpose of accelerating the payment of the debt, the authorities show, that the courts will grant relief, by decreeing a sale to accelerate the payment, and, a fortiofi, will they do so, when the only remedy by the creditor is to be found in the power of this court of decreeing a, sale. In such a case, in the language of the Supreme Court of the United States, in Barton vs. Smith et al., 13 Peters, 464, they will "not leave the cred- itor to look on hopeless despondency, except through the interposition of a court of equity in decreeing a sale." It is said, however that the deed is void, because of the uncertainty of those provisions which have reference to the making of div- idends. The argument is, that it does not appear from what source the dividends are to accrue, or by whom they are to be ascertained and declared. Now I think that though the terms employed are not so explicit as they might Be, that it does suf- ficiently appear that the dividends were to arise from the prof- its to be derived from the use of the buildings, and this was the manifest understanding of the college, as appears by its answer, which says, that the deed contemplated the payment of dividends out of the net receipts to arise from the use and employment of the buildings. The same ground is virtually taken by Green in his answer, which relies upon the defences set up in the answer of the college. As to the objection that no persons were designated to ascertain and declare the divi- dends, this, from the nature of the trusts, was a duty to be per- formed by those having charge of the finances of the institu- tion. But the great object of this bill is to procure a decree for the sale of this property, for the satisfaction, not of the in- |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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