Butler v. Gazzam

81 Ala. 491 | Ala. | 1886

SOMERYILLE, J.

— The Chancellor, in our judgment, correctly decided that the mortgage executed to Joseph C. Butler on June 1, 1868, by Mrs. Gazzam and her husband, in which her trustee, C. W. Gazzam, Jr., united, conveyed to the mortgagee no greater interest than the life-estate of Mrs. Gazzam in the mortgaged lands. It is very clear that the deed of the husband, Charles W. Gazzam, Sr., under which the wife held title, and bearing date in August, 1867, created in her an equitable separate estate, and one only during her natural life, with remainder to the heirs at law of the grantor. The trustee, under the express terms of the trust, had no power to sell or convey the lands except upon the written request of the wife, and even this only for the purpose of re-investment of the proceeds of sale. ' We need not decide whether, in case a sale had been made, the signature of the wife to the conveyance would be construed as a written request to convey, or whether it would be construed simply to affect her interest in the lands. What we decide is, that, whether there was a written request or not the trustee had no power vested in him to mortgage, or encumber the land in the manner attempted, but only to sell for the purpose of re-investment. To accomplish this he must have sold for money or other valuable consideration, susceptible of being re-invested in other property, which was to be impressed with the same features of trust which characterized that originally conveyed. A power to sell for re-investment does not confer the authority to mortgage for a debt created by borrowing money, and that is this precise case. It necessarily follows that the mortgage conveyed only the life estate of Mrs. Gazzam, and in no manner affected the equities of the remaindermen.

' Our past decisions sustain the rule that an executor or administrator has the full legal title to all dioses in a/tion due the estate of a decedent, and that he may, in the absence of fraud or collusion, release, compound, or discharge them as fully as if he were the absolute owner, being answerable only for any improvidence in the exercise of the power. Waring v. Lewis, 53 Ala. 615; Woolfolk v. Sullivan, 23 Ala. 548; Miller v. Irby's Adm'r., 63 Ala. 477. And he may fully protect himself from liability by obtaining authority from the probate court to make a compromise of any bad or doubtful claim. — Code, 1876, § 2505. Whether this rule would authorize a personal representative to release and surrender the security afforded by a mortgage on realty, and to take instead of it personal security which was at the time insufficient, may be doubted. Be this as it may, any administrator or executor who has undertaken to make such a release and surrender in consideration of an inferior security, cannot, in our opinion, be heard afterwards to impeach the transaction. He is in this respect as much bound by the law of estoppel as if he acted in his individual capacity. Having induced the debtor to act upon the idea that the release is valid, he is not permitted to gainsay its validity to the prejudice of the party placing confidence in his assertion. — Bragg v. Massie, 38 Ala. 89 ; Fambro v. Gannt, 12 Ala. 298.

This principle would preclude Pierce O. Butler, one of the complainants who made the release, from recovery, and his failure to recover likewise debars his co-complainant, as all of the complainants must be entitled to recover, or none can.

The demurrer to the bill was properly sustained, and the decree is affirmed.