130 Va. 655 | Va. | 1921
after making the foregoing statement, delivered the following opinion of the court:
We will first dispose of the questions presented in argument which arise upon the assignments of error before us to the action of the court below in sustaining the demurrer to the original bill by the decree entered October 26, 1920.
The controverted questions before us which arise upon the assignments of error to the action of the court below in sustaining the demurrer to the original bill are only two. They will be disposed of in their order as stated below.
This question must be answered in the negative.
It is contended on behalf of the appellant that the language of the will on the subject under consideration at least leaves this question in doubt, the language being “the said James B. Keesling and his said daughter, if she shall survive her father and become twenty-one years of age and become the heir or devisee of her father, shall have the full power and authority to sell and convey * * * and to invest the proceeds of such sale in other property, to be held and owned in the same way, subject to the like provisions that if they should both die without issue living at the time of their death * * *,” etc. (Italics supplied.) The use of the particle “and” where it first occurs in the quotation is, however, plainly with the meaning of “and also,”' when construed with reference to the exercise of the power, as it is manifest from a reading of the whole sentence that the power is conferred, indeed, upon the father and daughter, but that it may be exercised by the father in his lifetime, and also by the daughter, “if she shall survive her
2. Upon the case made by the original bill, was there any obligation on the appellant as purchaser to look to the application of the purchase money?
It was a purchase of property which in equity will be regarded as held in trust by James B. Keesling during his life time, but with general power of sale and conveyance given him, with discretion as to time and terms of sale, with express provision that the property in absolute right should pass to the purchaser; and also, along with the duty to reinvest the proceeds of sale in other property to be held upon the same trust, the trustee is given unlimited discretion as to the kind of property and as to the time in which reinvestment shall be made. And, according to the original bill, the appellant was a bona fide purchaser for full value of such property from such a trustee, without actual or constructive notice of any breach of trust committed or intended to be committed by the trustee.
It is well settled that in such case there was no obligation on the purchaser to look to the application of the purchase money. Redford v. Clarke, 100 Va. 115, 40 S. E. 630; Hughes v. Tabb, 78 Va. 313; Claiborne v. Holland, 88 Va. 1046, 14 S. E. 915; Potter v. Gardner, 12 Wheat. (U. S.) 498, 6 L. Ed. 706; Elliott v. Merryman, 1 Lead. Cas. in Eq. Pt. 1, 109, 119, and notes.
As said in Claiborne v. Holland, supra, 88 Va. 1046, p. 1049, 14 S. E. 915-916: “* * * it is well settled in Virginia, and the prevailing doctrine in this country is, that where a sale is made by a trustee under a power to sell and reinvest upon the same trusts, a bona fide purchaser who pays the trustee will be protected.” (Citing Hughes v. Tabb and Elliott v. Merryman, and notes to latter case, supra.)
“There is much reason in the doctrine that where the trust is defined in its object, and the purchase money is to be reinvested upon trusts which require time and discretion, or acts of sale and reinvestment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look, to the 'application of the purchase money, for the trustee ■is'- clothed; with a discretion in the management of the trust fund, and if any persons are tc suffer by his misconduct, it should rather' be those who reposed confidence than those who 'háye Bought under an apparent authorized act. Opinion' bf'JpSfice Story in Wormley v. Wormley, 8 Wheat. 442; Sugden on Vendor’s Ch. 11, sec. 1. So, when a sale is made by trustees., üpder a power to sell and reinvest upon the same terms, - ,it "has been held in America that the purchaser is not bound to see to the application of the purchase money. 2 Story’s Equity, sec. 1134, and authorities there cited.”
In Redford v. Clarke, supra (100 Va. 115 p. 119, 40 S. E. 630, 631), this is said: “In this case there was a discretion vested in the trustee to determine in what particular property he would reinvest the fund, .a. discretion over which the purchaser had no control, and for the due exercise of which, if he acted in good faith, he was not responsible.
We come now to the questions which arise upon the assignments of error to the action of the court below in refusing to allow the bill of review to be filed except upon the condition imposed by the decree of November 22, 1920, which is also under review on this appeal; or, what is the same
These questions are also but two in number and they will be disposed of in their order as stated below.
According to the case made by the allegations of the bill of review the appellant, at the time of his purchase, was under no obligation to look to the application of the purchase money. But after his purchase and, indeed, after the decree upon the original bill, it is alleged by the new pleading that the appellant discovered, and, in substance, became possessed of actual knowledge that the sale to appellant by the trustee was for the purpose of enabling the trustee to commit a devastavit by the diversion and use by the trustee? of the purchase money to pay his own personal obligations, and that if the purchase money was paid by appellant to the trustee the latter would so use such money and thus be enabled to commit and would commit the devastavit.
This plainly presents a situation in which the purchaser occupies the position of a stakeholder with respect to the unpaid purchase money, and, in equity and good conscience, it was his duty, by interpleader, to convene all of the persons in being, who might have an interest in such money, before the court having jurisdiction of the subject matter and pay the money which was due and to become due and payable into the hands of the court, so that it might be reinvested by the trustee under the terms of the trust, subject to the supervision of the court. And this, in substance, was precisely what the appellant conceived to be his duty under the circumstances set forth in his new pleading and was the relief he himself prayed, if not by the specific prayers of his new pleading, certainly by his submitting
The situation presented by the new pleading is not one in which, accurately speaking, the purchaser has the right tc look to the application of the purchase money. The discretionary powers vested in the trustee by the terms of the will with respect to the undesignated character of property and unlimited time within which the reinvestment is to be made, prevent this. The purchaser has no right of control of the action of the trustee in these matters. Nor, indeed, would the court. But the court could prevent the devastavit and yet permit the trustee to exercise the discretion vested in him by the will.
The sole right which the purchaser has under such circumstances is to take such action as will enable him to avoid becoming liable as particeps criminis with the trustee in the commission of the devastavit aforesaid.
As stated in the note to Pinckard v. Woods, 8 Gratt. (49 Va.), in Va. Rep. Ann., at bottom pages 471-2: “It is a well-settled doctrine that all who participate in a breach of trust are jointly and severally liable; thus a party knowingly dealing with the executor in such a way as to enable him to commit a devastasvit will be held liable therefor.” The Virginia cases there cited to sustain this proposition undoubtedly do so.
4. Is the decree of November 22, 1920, erroneous in that in granting leave to file the bill of review it imposed the condition or terms upon the appellant that he should pay into court that portion of the purchase money which was owing by the appellant in accordance with his contract of purchase and past due at the time of the entry of the decree?
This question must be answered in the negative.
No authority is cited for appellant to sustain the contention that such action was erroneous, nor have we been able to find any.
The bill of review in the case before us is founded on alleged newly discovered evidence and must rest solely on that ground; because, as we have above held, there was no error
As to both decrees under review, therefore, the case will 'be affirmed.
Affirmed.