102 Iowa 482 | Iowa | 1897
To properly solve the questions presented, a further statement of tbe facts is necessary. It appears from tbe record that Lamb sold tbe land covered by the mortgage to G. I. Johnson, the father of Peter A. Johnson, ■and tbe father-in-law of Pat Kenney. At the time of tbe sale, the loAva Loan and Trust Company held an unsatisfied mortgage upon the property. Johnson, tbe father, agreed to pay Lamb one thousand, four hundred and fifty dollars; one thousand dollars of which was covered by an assumption and agreement to pay tbe Iowa Loan and Trust Company mortgage, and tbe remainder to be paid to Lamb. He caused tbe land to be conveyed (by Lamb) to his son and son-in-law, and Kenney agreed to pay 'the consideration to- Lamb. Kenney thereupon executed bis note to Lamb for tbe amount stated in tbe deed of trust, and G. I. Johnson signed the same as surety. He also assumed and agreed to pay tbe mortgage to tbe loAva Loan and
We .are aware that the uniform tenor of authorities is to the effect that a trustee has no powers, except those conferred by the instrument creating the trust, and that those given 'are strictly construed; and we do not overlook the fact that persons dealing with the subject of the trust must take notice of the extent and limitations of the powers conferred; and we do not desire to intrench upon these well-established and salutary rules. But the question here presented cannot be solved by reference to these rules alone. Here is a case where the trustee has the undoubted authority to discharge the 'deed upon payment of the debt secured thereby. His appointment is accepted by the cestui que trust, and
Some conflict will be found in the authorities bearing upon the questions here considered', but we think /the ca,se turns on the application of a few well defined equitable principles, and that the result reached is in accord with these maxims. See, as. sustaining our conclusions, Field v. Schieffelin, 7 Johns. Ch. 150; Ahern v. Freeman (Minn.) 48 N. W. Rep. 677; Kuen v. Upmier, 98 Iowa, 393; Merrill v. Luce (S. D.) 61 N. W. Rep. 43; Whipple v. Fowler (Neb.) 60 N. W. Rep. 19; Jones’ Executors v. Clark, 25 Grat. 656; Carter v. Bank, 36 Am. Rep. 341.
Appellants filed a -cross-petition, in which they asked that the deed of trust be decreed to be no lien upon their real estate, and that the same be declared fully -canceled and satisfied of record. This relief should have been granted. The decree of the district court is reversed, and the cause remanded for further proceedings in harmony with this opinion. — Reversed.