31 A. 166 | R.I. | 1894
In 1867 Samuel D. Bradford, Jr., mortgaged real estate in Newport to Alfred Smith for $40,000 and then conveyed the same to *744 Arthur W. Austin of Massachusetts, in trust, to sell and pay his debts, including the mortgage debt; then in trust for the grantor and wife during their lives, and after them to distribute to his issue or next of kin. In 1881 Smith assigned this mortgage to said Austin and Paschal W. Turney of New York, executors and trustees under the will of Samuel D. Bradford, Sr., who paid for it out of the trust estate, although the assignment ran to them individually. Bradford, Jr., Austin and Turney have died, leaving wills, which were duly proved in their respective States; but neither of the four wills have been filed or proved in this State, nor has administration upon either estate been taken out here. John H. Bradford and the successors of Austin and Turney as trustees are complainants. In 1885, the non-resident executors of Austin and Turney sold the Smith mortgage to Hales W. Suter of Boston, who thereupon sold the estate at auction under the power of sale contained in the mortgage, to the complainant John H. Bradford, who then sold the estate to William A. Hayes, 2nd, of Boston. Hayes thereupon payed a mortgage to the complainants, as trustees under the of Samuel D. Bradford, Sr., for the sum of $40,000, and then made a conveyance to John H. Bradford, individually, who has made a contract of sale with the defendant David H. King, Jr., which he now seeks to have specifically performed; or, if need be, that the complainant trustees may be decreed to sell under the Smith or Hayes mortgage, as the court may find one or the other to be valid, in order to perfect the title.
The bill shows that no consideration has been paid in any of these conveyances since the original assignment of the Smith mortgage to Austin and Turney, which was paid for out of the trust funds in their hands under the will of Samuel D. Bradford, Sr., whereby the mortgage debt and security became in equity their property as trustees of said estate. Jencks v. Cook,
The case then is this: Austin held the estate in trust, subject to the Smith mortgage held by himself and Turney as trustees. Sundry conveyances were then made for the purpose *745 of working a foreclosure of the mortgage under the power of sale and thus creating a title to the whole estate freed from the trusts, under which John H. Bradford contracted to sell the estate to King. Whatever might have been the result of these conveyances had there been an actual sale for value, it is plain that the mere form of a sale and passing of papers did not change the equitable title a whit. Trusts cannot be wiped out in this easy way. What was done, at most, could be nothing more than to transfer the mortgage around through one and another into the place whence it started; into the trust estate under the will of Samuel D. Bradford, Sr.
John H. Bradford has acquired no individual title to the estate which he can convey to another, and therefore he can not require the respondent King to perform the contract made with him individually for the purchase of the estate. But the bill further alleges that, although John H. Bradford took the conveyance to himself, he took and holds the same under the trusts of the will of said Samuel D. Bradford, Sr., and under the agreement of sale in behalf of said trust estate. The trustees, adopting the contract as their own, have also prayed, in case the title is defective, that it may be perfected through a sale under the Smith mortgage, and to this the respondent King and all parties in interest, they being before the court as parties to the suit, assent.
It appears from the bill that the trustees had full power to invest and re-invest under the will, and so had power as trustees to take the mortgage; that they did in fact take it as trustees, although they were not described as such. But it came to them after the death of the testator. The will, therefore, did not impose a trust upon this particular property, but relied upon the accountability of the trustees for the value of the trust estate under the different forms into which it might pass. In such a case, the legal title being in the trustees individually, we think they may proceed to foreclosure even though the will has not been recorded in this State. No question is before us which involves the will or the title to the estate except the power of the trustees, and the *746 admission of this by all parties in interest is sufficient to protect a purchaser at the sale. Read v. Knell, 69 Hun, 541. Whether in any case of sale by trustees under a foreign will it may be necessary to record a copy of the will in this State we need not now decide.
We do not think that such a sale can be made under the power of sale in the mortgage, because the present trustees were not the original appointees, nor are they their assigns in the strict sense in which that term should be construed in a power of this kind. Douglas v. Hennessey,
