Cleaver v. Matthews

Lewis, P., after stating the case, delivered the opinion of the court. We are of opinion that the decree is plainly right. The bill is demurrable on several grounds. In the first place, it lacks certainty and precision. It complains that the timber on four acres of the land has been cut, but it does not charge that the cutting was done after the land was purchased by the complainants, and, for aught that is alleged to the contrary, it may have been done before that time. That it was subsequently done is altogether a matter of inference. But, assuming that it was subsequently done, the result is the same; for at most it amounts to a mere trespass on the land, which is not even charged to have been done by Matthews. Indeed, the inference is that [804] it was done by Boyer, or the Hottells, or Shull, or all of them, and not by Matthews. Nor is this all. The suit is not brought to obtain compensation, for a deficiency in the stipulated quantity of the land, for there has been no deficiency. It is conceded that the complainants got, and are in possession of, all the land for which they contracted. So that the case is simply this : The complainants are seeking by a suit in equity to set-off against the unpaid balance of purchase-money the unliquidated damages they have sustained by reason of the trespass or trespasses aforesaid, which cannot be done. Their remedy, if they have been inj ured as they claim, is at law. A suit in equity cannot be changed into an action of trespass. Nor would the fact of the insolvency of the vendor give jurisdiction to a court of equity to enter such a decree as is prayed for, even if the injury complained of had been caused by the acts of the vendor himself. Robertson v. Hogsheads, 3 Leigh, 667; Buzard v. Houston, 119 U. S. 347; Wash. Sav. Bank v. Thornton, ante, p. 157. As to the misdescription of the land in the trustee’s advertisement of sale, it is sufficient to say that that question is no longer a practical one in the case. The sale was enjoined upon the filing of the bill, and when the injunction was dissolved the proposed time of sale had passed. Another advertisement will, therefore, be necessary before the land can be sold, and when that is made the mistake in the first (which was doubtless a typographical error) can be corrected, or rather avoided. Complaint is also made of the decree because all the land was advertised for sale by the trustee, whereas the allegation of the bill, admitted to be true by the demurrer, is that the sixty-eight acre tract alone is amply sufficient to pay the unpaid balance of purchase-money secured by the trust deed. The statute provides that a trustee, under circumstances like the present, shall sell the property con [805] veyed, “ or so much thereof as may be necessary.” Code 3873, ch. 113, § 6. And it is therefore improper, ordinarily, for the trustee to sell more than is sufficient to satisfy the secured debt. But this does not forbid his advertising, in his discretion, the whole of the trust subject, for before the property is actually offered for sale it cannot always be known with certainty how much it will be necessary for him to sell. The presumption is that the trusteee will do his duty, and in the present instance, he having advertised the land in parcels, the presumption is that when the sale is made no more of the land will be sold than is necessary under all the circumstances, having regard to the interests of all parties. Upon a similar question in Michie v. Jeffries, 21 Gratt. 334, the court said: “ We do not mean to say that he (the trustee) must sell precisely so much as may be sufficient to satisfy the purposes of the trust, and no more. It may be difficult or impossible to do this, and it may, in fact, be a breach of trust to do it. He cannot so divide and sell the land as to do unnecessary injury to the owner. He is the agent of both parties, and must consult and respect the rights of both. The sale of a part of a tract of land may injuriously affect the sale or value of the balance, and it' may be the duty of the trustee to sell the whole tract, or more of it than is required for the purposes of the trust— especially if desired by the owner of the land to do so. By duly considering the rights, interests and wishes of the parties, an intelligent and faithful trustee will rarely find any difficulty in the discharge of his trust.” The decree is affirmed. Decree affirmed.