Saunders v. Schmælzle

By the Court, McKinstry, J.: The date, names of the parties and description of property sufficiently identify the deed of November 24, 1849, as the instrument referred to in the assignment from Simmons to Billings, Bolton and Halleck. The fact that the deed had not been recorded in Sacramento did not vitiate the description, otherwise sufficient, contained in the assignment. If the surviving trustees, Billings and Bolton, had authority to execute a conveyance of the legal title to the plaintiff, the District Court was empowered to decree such conveyance; and the objection that the Court had no jurisdiction to enter the decree of the 13th of March, 1870, (on [67] the ground that the authority of the trustees was to be exercised at their discretion) was properly overruled. It does not appear from the record but that the land had been sold by the three trustees to the plaintiff, and the consideration received by them, in which event it was their absolute duty to transfer the legal title. The only remaining question is: Did the District Court have jurisdiction to decree a conveyance of the legal title by the surviving trustees after the death of Halleck? The trustees held the title as joint-tenants. Whenever, by the terms of gift, it is doubtful whether trustees take as joint-tenants, or tenants in common, Courts will construe a joint-tenancy if possible. (Perry on Trusts, Sec. 343, and cases cited.) And the Statute of April 27, 1855, provided: “ Every interest in real estate granted or devised to two or more persons, other than executors and trustees as such, shall be a tenancy in common, unless expressly declared in the grant or devise to be a joint-tenancy.” (Acts 1855, 1871.) On the death of Halleck, therefore, the whole estate devolved upon the survivors. The survivorship of the estate carries with it survivorship of such powers as are annexed to the trust. “ If an estate is vested in three trustees upon a trust to sell, there, as the power is coupled with an interest, and the interest survives, the power also survives. And this is as old as Lord Coke, who says, ‘ If a man deviseth land to his executors to be sold, and maketh two executors, and one dieth, yet the survivor may sell, because as the estate, so the trust shall survive; and so note the diversity between a bare trust and a trust coupled with an interest.1 ” (Perry, Sec. 505.) Judgment and order affirmed. Mr. Justice Rhodes did. not express an opinion.