Marx v. Clisby

HARALSON, J. The first and second grounds of demurrer, the same in substance, are that the land complainants seek to recover was purchased with the rents- and profits of the trust estate, and that by the terms of the will said A. A. Olisby cannot be held to account to-the complainants for his acts and doings or for the manner of executing or using said rents -and profits during his life. A sufficient answer to these grounds may be> that the purpose of the bill is not to make the trustee account for the said rents and profits. The trustee had the right, under the will, to invest rents and profits in this land. The hill admitting this, seeks to have the land thus purchased held as trust property.for -complainants’ benefit under the deed. This property when purchased became complainants’, purchased with their money, and was to be held by the trustee for their benefit. It was not subject to mortgage by the trustee under the will to pay debts of the testatrix, for it did not belong to her at her death, and it was only the lands owned by her at that time, that she gave the trustee power to mortgage. ' The probate and records of the will, and the record of the deed of Maddox to the trustee, Clisby, gave notice to all who dealt with the property afterwards, of the power of the trustee under the will, and the extent of his power. The third ground of demurrer is in denial of the plainaverments of the bill; and the fourth, also., goes in denial of its averments. The hill seeks no relief as to the land-embraced in the original mortgage by the trustee toHirsch to secure the $12,5.00; but even as to that mortgage, it is averred that the said Olisby owed that- sum to Hirsch, both as an individual and as executor and trustee. H-ow much of it he owed in his individual capacity, and how much as executor and trustee, is not stated; but it cannot he pretended he had any power to mortgage the trust lands to pay his individual debt. As to that part -of the -debt he is said -to have owed as-trustee, it may he, he had power under the wrill to mortgage the land. He had such power, if the debt was one which testatrix was liable for at her death, and it was [115] necessary to raise the money by mortgage to pay it. As to the new mortgage in extension of the older one and the debt it secured, it is still clearer, if possible, that the trustee had no power to include in it the Maddox land to pay a debt of his own; and he was without authority to include it in the latter mortgage, for the reason already stated — that it was not land, which belonged to the testatrix at her death, and he had no power to-mortgage any other. The will noAvhere gave him power to mortgage land which he had purchased with rents and profits. What remedies, if any, -creditors would have-to pursue this land, as having been bought by the trustee-with rents and profits of the estate, in case it were neo essary to resort to it to pay their debts, is a question not here presented, and as to which we express no opinion.. The fifth and sixth grounds are without merit. They question the equity of the bill, for that complainants have not offered to return nr account for the proceeds-of the purchase money for said lot, which enured to their benefit, and have not offered to account for the benefits received by them. How could -they be- required to make such an offer? It was their money that paid for property, not liable under the will to be mortgaged and as for that part of the other property covered by said mortgage, which might have been properly mortgaged to secure a debt of the testatrix, the -only benefit, complainants could have derived as to it, under said mortgage was its extension for two years, and even that, extension of the mortgage might have been a disadvantage to them. We fail to see how the bill is; liable- to any of the 'objections interposed by demurrer. The complainants were not estopped by any unauthorized act of the -trustee in mortgaging this trust land, nor have they received anything they are required to return, as a condition to the maintenance of their bill.—Gillespie v. Nabors, 59 Ala. 441; Randolph v. E. B. Land Co., 104 Ala. 355. The decree overruling the demurrer mnst be affirmed. Affirmed.