Johns v. Sergeant

Peyton, O. J.: This is a writ of error from a decree of the chancery court of Yazoo county, setting aside a sale of eighty acres of land by a trustee under a deed of trust made to secure a debt therein specified. The several answers of the defendants fully deny the equity of the bill of complaint and all combination and fraud in the sale. And the answer of Sarah Johns denies that there was any .irregularity in the sale, and insist that she was a bona fide purchaser of the property at said sale, and entitled as such to the protection.of a court of chancery. It is sought here by the counsel for the appellee to sustain the decree of the court below on the following grounds: 1st. For the want of legal and proper notice of the sale. 2nd. Because the trustee employed an agent to post the notice and conduct the sale. The deed of trust required that notice of the time and place of sale should be given by posting the same for twenty [337] days before the sale. This furnished the rule as to notice, and the testimony shows that this requirement was complied with. With respect to the sale of the property the evidence shows that the trustee employed a stranger to post the notice and conduct the sale. This we think .he may do. These are mere ministerial acts, which require no exercise of discretion, and therefore may be done by an agent, if ratified by the trustee. The administration of the trust is a matter of personal confidence, which it is a breach of trust in the trustee to make over to a stranger, and the original trustee will continue responsible for all jihe acts of the person so substituted. And although trustees will be allowed to employ a solicitor or agent, and to govern themselves by his advice as to their conduct in the trust, yet they will not be justified in committing the entire management of the trust to him. However, the employment of an agent for carrying out mere ministerial acts, such as the sale of the property, and purposes of that nature is-not a delegation of the trust, for such acts are necessary to the discharge of the trust; and it will be sufficient that the trustee retains the supervision and control over the person so employed. Hill on Trustees (4th Am. ed.) 841, 842, top pages. In the case of Sinclair v. Jackson, 8 Cow. 582, it was said to be the better opinion, that trustees with a power might act by attorney, if they restricted him to the conditions imposed on themselves. The sale may be made by the agent, subject to the ratification of the trustee. Who shall execute the conveyance. An agent may perform a mere ministerial or mechanical act by a sub-agent or deputy, even where he cannot delegate any portion of his authority requiring the exercise of the least discretion. Williams v. Woods, 16 Md. 220. In this case, Sarah Johns became the purchaser of the land under the deed of trust in good faith and for a valuable consideration which was paid to the trustee, who executed and delivered to her a conveyance for the same, and the [338] debt has been paid and satisfaction entered on the margin of the record of the deed of trust. Upon the whole, we think the sale was valid, and should have been sustained by the court below. The decree is reversed, and this court, proceeding to render such a decree as the court below ought to have rendered, doth order, adjudge and decree, that the complainant’s bill of complaint be dismissed at his costs.