Cameron v. Phillips

Jackson, Judge. This was an action of ejectment founded upon an instrument made by Phillips to Cameron, as trustee, and when the case was tried, the court ruled out the paper because it did not, in its judgment, pass such a title as would empower the trustee to recover the possession of the land in ejectment. [436] To this ruling Cameron excepted, and the question is, did he have the right to recover the possession of the land by virtue of the paper- offered in evidence. It appears from the record, that to secure the payment of á debt due to Cox & Hill, Phillips executed the instrument to Cameron as trustee “ to seize, sell and dispose of ” the house and lot described, and with the proceeds to pay the debt, and if any sum-was left, to pay that to Phillips, unless the debt was paid at maturity. We think that the intention of the parties, to be gathered from the entire instrument, was to pass - such title into the trustee for the benefit alike of the creditors and the debtor, as should enable him to sell to the best advantage for all, and pay the cestui .qui trusts what the deed entitled them to' receive of the proceeds. These cestui qui tn-usts are Cox & Hill, and secondly, Phillips. No man will buy a law-suit ; and it is fair to presume that unless the trustee could possess himself of the property and be ready to deliver it to the purchaser, it would not bring a full price. It was, therefore, to the interest of all that Cameron should be ready to-deliver possession when he sold. Accordingly he is empowered by the grantor,, to seise the land, which means, we think, in this deed, to possess himself of it. He is empowered not only-to sell but to dispose of, which words help to convey the idea of possession and the delivery of possession. It is true that he must sell in a particular way ; but this often is the case in trust deeds where the title is conveyed to the trustee. On the whole, under the rulings of this court and the true intent and meaning of this paper, as gathered from its entire terms taken and construed together, we think that such a title passed to the trustee as to give him title to possess this land. See 55 Ga., 650, and Woodson vs. Veal & Minor, decided to-day. Judgment reversed.