Gale v. Mensing

Leonard, Judge, delivered the opinion of the court. This petition was to recover the possession of land upon the legal title, and not for any equitable relief. The deed from the Kings to Jeffries and Bay was not a mortgage, but a conveyance of the whole title, subject only to Caldwell’s mortgage, and it vested the legal ownership in the trustees against all persons except Caldwell and his assignees. So far as the record shows, this conveyance was not, as the appellant seems to suppose, a second mortgage, nor a mere naked authority to sell for the benefit of creditors ; but, as we have already remarked, a transfer of the legal ownership, upon the trusts declared in it,., subject to Caldwell’s mortgage. It is not void as a mere matter of law, on account of the-omission of the creditors to sign it, as they were required to do,, in order to entitle them to any benefit under it, and there, is no question saved in the record as to its invalidity on the score of' fraud in fact. The consequence is, that their conveyance to. Caldwell, in satisfaction of his mortgage debt, vested the entire legal ownership in him, and the subsequent satisfaction- of the-mortgage extinguished that incumbrance upon the title, for the benefit of whoever was the owner of it, instead of returning that title to the Kings, who had previously parted with, all their-interest in the land by their deed to Jeffries and Bay. There is no question here as to the mere legal propriety of' the conduct of the trustees in conveying to Caldwell. Whether that act was a breach of duty for which they are- liable- to. whoever were the beneficiaries of the property at that time, cannot be discussed in this record. It is sufficient here that the legal ownership was in them, and that they made the transfer to Caldwell, which we must presume was proper,, and not a [464] breach of trust, until it is so shown in a proper proceeding instituted against them for that purpose. The judgment is affirmed.