Judge v. Pfaff

Holmes, J. The instrument in.question is a conveyance in trust, made for the purpose not only of securing but of extinguishing the debt which it mentions. It expressly provides that the trust shall continue until the debt is extinguished, unless the trustee agrees to its revocation by the grantor. In pursuance of this purpose the trustee is given different and more extensive powers than those contained in simple mortgages. The power to sell is not the usual power to sell upon a future default which may or may not happen, but a power forthwith or at any time [200] to convert the property conveyed, or any part of it, into money. It is coupled with a power to exchange, and stands alongside of a power to convert realty into personalty, and personalty into realty. The proceeds of a partial sale may be used to extinguish encumbrances upon the residue, and while we assume for the purposes of argument, although the deed expressly contemplates investments, that upon a sale of the whole it would be the trustee’s duty to apply so much of the proceeds as are necessary to the payment of the debt, we do not think this fact sufficient to bring the power within the operation of Pub. Sts. c. 181, § 17, requiring a publication of notice before a sale under an ordinary mortgage power. That chapter does not prevent a debtor from conveying property in satisfaction of a debt, either immediately or through the mediation of a trustee with power to sell and apply the proceeds, and § 17 does not interfere with or regulate the exercise of such a power. The contract set up is equally unaffected by § 21, giving a right of redemption unless there has been an entry and three years’ possession, or a sale under a power of sale. It is unnecessary to consider whether, if a mortgagee selling at a common foreclosure sale should make a contract in order to cover a short time necessarily spent in completing the conveyance, such a contract would not be a sale within the meaning of § 21. There is no doubt that the trustee had power to bind himself and the trust estate by contract to make any sale which he had power to execute. Shannon v. Bradstreet, 1 Sch. & Lef. 52, 59. Lowe v. Swift, 2 B. & B. 529, 535. Clarke v. Moore, 1 Jon. & Lat. 723, 727. It follows that, assuming without discussion that the plaintiff had a right to redeem the fund, (Parks v. Hall, 2 Pick. 206, 210, 211,) he must take the fund as he finds it, subject to any changes in form lawfully made by the trustee, including contracts which in equity have the effect of conveyances. As the plaintiff did not wish to redeem upon these terms the bill properly was dismissed. Bill dismissed.