Whittelsey v. Hughes

Fags, Judge, delivered the opinion of the court. A brief statement of the facts will develop the point which is regarded as the most material one presented by the record. The other points will not be considered, as this will be sufficient upon which to rest the decision of the case. This was an action of ejectment, commenced in the St. Louis Land Court, , against the widow and keirs at law of James M. Hughes, deceased. The following state of facts shows the ground upon which the plaintiff’s right of recovery is based. On the.2d day of September, 1856, James ]£. Hughes and wife conveyed to George B. Sanderson and Henry W. Williams/certain real estate in the city of St. Lcuis in trust to seciure the payment of a note of that date fir $10,000, due ffnd^payable five years thereafter; and also ter interest notes, each'for the sum of $500, payable semi-anmally from said date. James M. Hughes died in the month of February, 1861, and Sanderson, one of the trustees, ii the month of May thereafter. On the 25th day of Novenber following, Williams, the surviving trustee, executed a died to the plaintiff Whittelsey, reciting the death of his co-tustee, and also the fact that he intended “ to leave St. Loris to be absent some time,” and that he did thei’eby bargsin; sell, convey and quit-claim unto said Whittelsey the premises in said [19] deed described and to bis heirs; “ to have and to hold to the same uses and trusts prescribed and created by the deed aforesaid, so that he the said Whittelsey may and shall act as trustee in my place, and execute the power conferred upon me.” In pursuance of the last mentioned deed, the property was advertised for sale by Whittelsey in the “ St. Louis County Legal Record and Advertiser,” and sold at public auction in the city of St. Louis on the 29th day of January next following. The testimony of the auctioneer shows that “at this sale Whittelsey was the last bidder, not buying for himself, but for parties in Europe; and, therefore, in my book I left the name of the purchaser blank. I do not recollect of any other bidder. I do not know that Mr. Paul was there,” &c. Two days afterward, Whittelsey as trustee executed a deed to Adolph Paul, reciting the previous conveyances, the advertisement and sale, and also that said Paul was the highest and best bidder for $6,500, and conveying this property to him absolutely in fee. On the same day and for the same consideration Paul reconveyed the property to Whittelsey. The said Paul was introduced as a witness bn the part of the defendants, and testified as follows: “ I was not at the sale, and I did not bid for or buy the land in question. Mr. Whittelsey requested me to execute a deed to him for the land he conveyed to me, and I did it to accommodate him. This request was about the time, or perhaps a day or two before, the deeds were signed. He made this deed to me and I made this other deed to him, and we acknowledged them before Mr. Tillson. No money passed between us; it was done for his convenience.” Passing by the questions raised as to the regularity of the sale, the right of the defendants to redeem the properly, as well as the right of the trustee to purchase at the sale, "we come directly to consider the power of the trustee Williams' to substitute another to the powers conferred upon him by the conveyance from Hughes and wife. In the case of McKnight v. Wimer, 38 Mo. 132, deeds of trust as used in this [20] State, with the character of the estate acquired by the trustee, as well as the powers and authority conferred upon him, were carefully considered and the authorities all examined and cited. A reference is made to that case for the reasons there given, and which will apply with equal force to the one at bar. The object of such a deed is very apparent. The property conveyed is to be considered as a security for the debt. A power is conferred upon the trustee, upon the happening of the contingency named, to sell the property; and, to effectuate the object in view, he is clothed with the legal estate in the premises for the purpose of passing it to the purchaser. The substantial part of the deed is the equitable interest in the property which is acquired by the cestui qui trust, whilst the trustee is the. mere instrument selected bj the grantor to .make the sale and transfer. Being, therefore, a mere instrument to execute the purpose of the grantor, I.e cannot delegate his power to another without express authority conferred by the deed itself. It is said that “ trusts being in their nature matters of confidenpe reposed in the trustee, who is invested with the legal title and control of the trust property, must be executed by the person or persons to whom they are confided; consequently, the duties of the offce of trustee cannot be delegated by him to another unless the instrument creating the trust clearly confers such power upon him”— Tiff. & Bull, 856, and Hill on Trustees, 248. It is insisted by the plaintiff in error that Wiliams could legally convey the estate and transfer the power which had been; conferred upon him by the deed of trust. The haben-duifi was “ to said trustees and the survivor oftliem, and to the heirs, executors, administrators and assign; of said survivor, in trust,” &c. Much stress is laid upn the word assigns, and the case of Titby v. Wolstenholme, 7 Beav. 425, is jited as authority to show that a devise madi by the surviving trustee of a trust estate was valid, no eipress power of appointing new trustees being given by the will. From this decision the argument is made in this case that the power to convey by deed, and to make an appointment of a new [21] trustee, must necessarily follow. Let us see the reasoning in the case referred to. The Master of the Rolls said, “ we have in this will expressions which clearly show that the testator intended the trusts to be performed by the “assigns” of the surviving trustee; and in construing the will, we must, if practicable, ascribe a rational and legal effect to every word which it contains. We cannot consistently with the rules of this court consider the word “assigns” as meaning the person who may be made such by the spontaneous act of the surviving trustee, to take effect during his life ; but there seems nothing to prevent our considering it as meaning the person who may be made such by devise and bequest; and if we do not consider the word “assigns” as meaning such persons, it would in this will have no meaning or effect whatever.” It is clear that the construction given by the court in that case was because it was absolutely necessary to give any effect or meaning to the will whatever. The doctrine is most clearly enunciated, as it is everywhere else, that the trustee could not while living, without an express authority for that purpose, delegate his power to another; and it is difficult to see how it can be relied upon as an authority to support the deed of Williams to the plaintiff. The case was tried by the court sitting as a jury, and verdict and judgment rendered for the defendants; whereupon the plaintiff brings it here by writ of error. No error being found in the record, the judgment of the Land Court will be affirmed. The other judges concur.