Bonner v. Lessley

Cooper, J., delivered the opinion of the court. The trustee Dillingham did not become unable to execute the trusts of the deed by his removal from the State, nor was such removal a “ refusal ” by him to perform the duties of trustee. It can only be said that by his removal the trustee rendered it more inconvenient to perform the duties imposed by the deed, but convenience and capacity are wholly different things, and the grantor provided only for inability on the part of the trustee or a refusal on his part to act. If the power of appointment had existed it is not shown to have been executed under the terms of the deed. The deed required that the appointment should be made in writing, and under the hand and seal of the person executing the power, the éxecution was by writing acknowledged, but neither signed nor sealed, it was therefore fatally defective, and conferred no power on the person appointed. Hill on Trustees 177, 185. Mrs. Frazier, however,Kby her purchase under the void sale, if the money paid by her was applied to the extinguishment of the trust debt, became the equitable assignee of the debt and subrogated to the right of the original cestui que trust, and as such entitled to charge the land in equity with the debt paid, Clarke v. Wilson, 56 Miss. 753, and this right passed to those claiming the estate under her. But this is an equitable, and not a legal right, and can only be enforced by application to a court of chancery. It is only where the equitable estate of the defendant is of such character that he would be entitled in a court of equity to have a transfer of the legal title, that he may defend in an action at law brought by the holder of the legal title. Lockhart v. Camfield, 48 Miss. 471; Land v. Keirn, 52 Miss. 341. Where the extent of the right of the defendant in ejectment is to fix an equitable charge on the property, or,, in other words, where the plaintiff has both the legal title and a beneficial interest in the land, the defendant must submit to a judgment in ejectment and seek the intervention of the court in chancery to enjoin its execution until satisfaction is made of his equitable charge. Hill v. Billingsley, 53 Miss. 111; Magee v. Wallis, 57 Miss. 679. Judgment reversed.