Monroe v. . Trenholm

*640 Avery, J. (after stating the facts): The deed executed in 1867 was a post-nuptial settlement by which E. L. Tren-liolm conveyed to his son, S. D. Trenholm, the land in controversy in trust for the sole use and benefit of his wife, Eliza B. Trenholm, and her heirs forever, and authorized and empowered, said trustee at any time to dispose of the lands * * * when so required by the said Eliza, and to invest the proceeds as she might direct. It will be observed, also, that the recital with which the deed begins declares that “whereas it is my desire to secure to Eliza Bonsai, my wife, and to her children, a portion of my real property,” etc. AVhether a conveyance of land or personalty be made before or after marriage, if its purpose is to place the property in the bands of a trustee for the sole and separate use of a married woman, the rule which must govern in passing upon any attempted alienation by her is that she has no power of disposition except such as is clearly given in the instrument. Kemp v. Kemp, 85 N. C., 491 ; Hardy v. Holly, 84 N. C., 661 ; Mayo v. Farrar, decided at this Term ; Knox v. Jordan, 5 Jones’ Eq., 175. The power to convey was conferred upon S. D. Trenholm, and was to be exercised by him “when so required” by his mother, the cestui (pie trust. The trustee has never conveyed and she has never, so far as we are informed, requested him to do so. As no authority to dispose of the property is conferred upon her by the deed of settlement, her attempted conveyance to the plaintiff Monroe was clearly ineffectual to transfer any estate, cither legal or equitable, to either of the plaintiffs. Kemp v. Kemp, Hardy v. Holly, Mayo v. Farrar, supra. The cause is entitled “AVilliam Monroe, trustee, II. E. Grimball and others against S. D. Trenholm,” both in the caption of the summons and complaint, and wc have made a fruitless examination of the pleadings tp ascertain who were or were intended to be the other parties plaintiff. The *641 inference is fairly deducible from tire fact that Mrs. E. B. Treniiolm is designated in the complaint not as a plaintiff, but as “his (defendant’s) cestui que trust mentioned in ‘ Exhibit B’”; that she, at least, has never been made a party at all. As neither of the plaintiffs acquired any interest in the land by the attempted conveyance of Mrs. E. B. Trenholm,' in disregard of the mode of alienation pointed out in the instrument under which she held, it is manifest that they are not entitled to recover possession in this action. It is equally clear that the plaintiff Monroe has acquired no right under this pretended or intended conveyance to call upon the defendant to divest himself of the legal title and the trusts coupled with it by his father in the settlement. If H. I). Trenholm wrongfully withholds the possession or profits of the land from the cestui que trust, Mrs. E. B. Tren-holm, the Courts may discuss or point out her remedy when she alleges and proves that he has so wronged her, but not at the request of a stranger to the instrument, who volunteers to ask redress for her. If by-reason of his habits, or for other sufficient cause, the defendant has become incompetent or unfit to execute the trust with which he was clothed by the deed, it is the right of Mrs. E. B. Trenholm, not of one who has no interest in the property, to ask in the way appointed bylaw for his removal and the substitution of a more suitable person in his place. As she is not before the Court complaining of a refusal on the part of the defendant to execute a voluntary conveyance to William Monroe in trust for H. E. Grimball at her request, we are not required, if we are at liberty, to determine whether the deed of settlement restricted her authority to the right to require a sale for re-investment, or conferred upon her the power to direct and compel the execution by the trustee of a voluntary conveyance to such one of her children as she should select as the object of her bounty. *642 Upon the admissions in tlio pleadings the action should have been dismissed and judgment rendered in favor of the defendant for the costs. There is error. Let this opinion he certified to the end that judgment may bo entered accordingly. Error.