Dillard v. Winn

MANNING, J. The determination of this cause turns upon the question, whether the trustee, George G. Lyon, had, before he sold the land in controversy to appellee (plaintiff below), divested himself of the title and power of trustee. To this end, he had made application to the register in chancery, under the chapter beginning with section 3727 (3447) of the Code of lc-76, tendered his resignation, and asked that a day be set for the determination of the matter, and his discharge from responsibility. But, before final action thereupon, or any decision or ruling made upon his application, he withdrew the tender of his resignation, and continued to act as trustee, and sold the land. "It was agreed on both sides, that, if he had the power to sell, the sale was made in strict compliance with the provisions of the trust-deed to him ; and all the evidence was agreed upon, or consisted of deeds, copies of proceedings before the register, and other writings. The rule of law is, that one who has accepted the title to real property as trustee, and undertaken to perform the duties of that relation, can not [divest himself of them at pleasure. In the absence of provisions to that effect in the deed or instrument creating the trust, or of a statute authorizing it, he can not resign his trusteeship, or be discharged thereof, except by the decree of equity ; “and the reason is, that if the estate has once vested in the trustee, it can not be devested by a mere disclaimer, or renunciation ; nor can he convey the estate, against the consent of the cestuis que trust, without committing a breach of trust.” — 1 Perry on Trusts, § 26‘8. And this doctrine was held to be applicable to a trustee of personal property, in Drane v. Gunter, 19 Ala. 731. The sections (3727 to 3731) under which the application was made by Lyon, and his resignation tendered, with a prayer “that a day be appointed, and proceedings be had as directed by law in such cases,” provide for a settlement of the trusteeship, and a granting of the application for a discharge. Section 3731 enacts : “The register, on the granting of such application, may appoint a trustee,” &c. In this case, there was no granting of the application, and no other trustee was appointed. The title remained in Lyon, and his sale conveyed it to appellee. It is ingeniously attempted to be shown, by reference to some cases in New York, that the power to sell mortgaged property to pay the debt, may be conferred on the mortgagee, by an instrument separate from the mortgage ; [288] and tbence to argue, that this power may be renounced» without interfering -with tbe title to the property in tbe mortgagee, or tbe right to Lave it appropriated, through a court of equity, to tbe payment of tbe debt. Suppose tbe argument be sound, bow does it touch this case ? Lyon was not the creditor with a mortgage : he is a trustee, to whom the title to the property was conveyed, to enable him, as trustee, to sell it to pay a debt to the creditor. He did not propose to resign, if he could do so, the . mere power to sell, but to divest himself of the title he had as trustee, as well as of the duties of that relation — of the whole, and not of a part; and this not being accomplished, his application was withdrawn, and all proceedings thereupon were discontinued, leaving in him the estate and powers which the trust-deed conveyed to and conferred upon him. There is nothing in the authorities referred to on behalf of appellant, to repel the plain conclusion that the trustee’s authority to sell and convey were unimpaired, when the property was sold, and appellee became the purchaser. Let the judgmeut of the Circuit Court be affirmed.