Claiborne v. Holland

88 Va. 1046 | Va. | 1892

Lewis, P.,

delivered the opinion of the court.

The appellants contend that the sale -of the lots and the reinvestment of the proceeds of the sale was a breach of trust for two reasons, viz :

(1) Because the reinvestment was not in real estate, but in slaves, and (2) because the object of the sale was to pay the debts of the husband, William C. Claiborne.

The deed creating the trust provided that in the event of a sale the proceeds should be reinvested in “ property of the same kind,” or in good productive stocks; and the question, therefore, is whether the re-investment was in property of the same kind, within the meaning of the deed. The circuit court held that it was, and in this view we concur. The trust fund was composed of both land and slaves, and the whole, as the appellees insist, was compounded by the donor “ into a common mass.” 'It was competent, therefore, for the trustee to have reinvested the money either in land or in slaves, or both.

But be that as it may, the result is the same. The trustee undoubtedly was authorized to sell, with the consent of the life-tenants, as he did, nor is there any less doubt that the purchaser, unless he had notice, actual or constructive, of a breach of trust, committed or intended, was not bound to see to the application of the purchase-money; for whatever may have been decided in England, 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 re-invest .upon the same trusts, a bona-fide purchaser who pays to the trustee null be protected. Hughes v. Tabb, 78 Va. 313; 1 Lead. Cas. Eq., 109, 118, notes to Elliot v. Merryman.

The appellants, however, insist that the purchaser in the present instance had notice of the alleged breach of trust, and that such notice was afforded by the recitals in, and the recordation of, the deed, a copy of which is filed with the bill as Exhibit “ D.’ But this position is untenable.

That deed in no way related to the lots sold by the trustee, but was a conveyance of certain slaves for the benefit of Mrs. Claiborne and her family; nor was Walters, the purchaser of the lots, a party to it. It was not, therefore, a link in the chain of his alienees’ title, and hence it was' not incumbent on them to have examined it before they purchased, although the trustee was a party to it, and it was duly indexed. So that, even if Walters had had actual notice of it, its recordation was not constructive notice to those claiming under or through him, and nothing is better settled than that a purchaser without notice from a purchaser with notice is not affected by such notice.

This also disposes of the appellants’ contention that the real object of the sale by the trustee was to pay the debts of William C. Claiborne, the contention being wholly founded on the recitals in the deed just mentioned.

Another point made by the appellants is that the sale was without the consent of the life-tenants. It is contended' that their consent could have been rightly given only by their uniting in a deed, and that such consent must have been given _prior to the sale. But no such formality is prescribed by the deed creating the trust, nor is there any authority for the appellants’ position. The point, however, does not properly arise on this appeal, inasmuch as it is not made in the bill. For aught that appears, therefore — the hill having been dismissed on demurrer — the consent of the life-tenants to the sale may have been given with all the formality contended for- by the appellants.

There is no error in the decree, and the same must he affirmed.

Decree aeeirmed.