116 Ala. 125 | Ala. | 1896
George E. Clayton, a resident of the State of Georgia, died leaving a last will and testament, by which he devised -to his sons and -daughters certain real estate situate in the county of Montgomery in this State, to be divided between them. The -will was admitted to 'probate in that county on the 3d day of November, 1846. The interests devised to his sons were without any limitation ; but as ■ to the portions devised to the daughters the will contained the following provisions ; “Whenever the parts or shares of my children shall have been set-off, allotted or ascertained, it is-my will and desire that my daughters, Caroline, Mildred, and Amanda, have a life estate in the respective shares falling to them, and the remainder to their children, respectively, upon the determination of such life estate. It is, moreover, my will that such several life estates as are hereby given shall in no event be subject to any debts or contracts of their respective husbands, or capable of being alienated by their husbands, or in any manner than by a decree of a court of equity, and then for the necessary support and maintenance of my daughters or either of them. The husbands of my daughters, though - not appointed as executors, are hereby desired to aid and assist their respective wives in the performance of their duties and trusts imposed; and finally I enjoin it most solemnly upon one and all of my .children and sons-in-law that the distribution of my property as hereinbefore directed, be made harmoniously and equitable as specified, and that the settlement of the ■ lots and shares of my daughters upon them during their respective lives, and then to their respective children, be carried out in good faith, that my parental love and care for them be not thwarted.” The land now the matter of controversy, was allotted in a partition between the devisees, to one of the sons, and was subsequently by him conveyed by warranty deed to Joseph
The conveyance contained the following power of dis- . position : “And upon the further trust and confidence that the said Philemon D. Sayre shall and may at any time during the life of the said Amanda L. Wilson, by the direction and request of said Amanda L. Wilson, testified by any writing under her hand and seal, make sale or convey in exchange for or in lieu of other lands and property, any part or the whole of said lot or parcel of land hereby and herein conveyed, and sell said lot or parcel of land or any part thereof for such price or prices in money as to the said Amanda L. Wilson should or shall seem reasonable, and should said Philemon D. Sayre sell the whole or any part of said lot or parcel of land for money, then to invest the money arising from the sale of said lot or parcel of land in such other estate
Sayre died on the 28th day of April, 1852. Joseph W. Wilson was duly appointed as his successor by the chancery court. , On the 29th day of May, 1869, said Wilson, the substituted trustee, and his wife the said Amanda, ‘ ‘in strict compliance with the terms of the trust deed conveyed the lot in controversy to Clayton Wilson with warranty by said Wilson.” On May 31st, 1869, Clayton Wilson mortgaged the lot to the Montgomery Mutual Building and Loan Association to secure a debt contemporaneously contracted. The mortgage contained a power of sale, and authority to the mortgagee to purchase. It was duly foreclosed April 17th, 1871, and the mortgagee became the purchaser. Under proceedings afterwards had in the city court of Montgomery, the affairs of said Building and Loan Association were settled, and its assets ordered to be sold for distribution. Pursuant to said decree said lot was sold June 9th, 1890, and the complainants,'John W. Durr and Judah T. Moses, became the purchasers for value.
No claim can be asserted by appellees to the lot other than under the trust deed from Joseph W. Wilson, for “it is admitted that Wilson paid.for the land with his own money.” No portion.of the trust estate under the Clayton will entered into its purchase. In the absence .of any investment of the trust funds in the purchase of the property, neither the life tenant nor the remainder-men had any lien whatever upon the property itself, and could not, of course, have compelled its conveyance. As to the trust funds which Wilson had used his liability was that of a mere debtor, and no trust could have been fastened by the life tenant nor remaindermen upon the lot. — Farris v. Stoutz, 78 Ala. 133; Ellison v. Moses, 95 Ala. 228; Goldthwaite v. Ellison, 99 Ala. 497; Goldthwaite v. Janney, 102 Ala. 44; Milner v. Stanford, 102 Ala. 280.
In Farris v. Stoutz, supra, where a pecuniary legacy had been converted, the court held that as the fund could not be traced into any property, the only remedy of the remaindermen was to file their claim as ordinary cred
Joseph W. Wilson was absolute owner of the property, and as ah incident of his absolute ownership had the right to dispose of it as his pleasure, interest or even caprice might dictate. — Pope v. Wilson, 7 Ala. 694; Bur-rill on Assignments, § 9. Having the absolute right of disposition, Wilson conveyed the property to Sayre, as trustee for Amanda L. Wilson, wife of the grantor, with remainder to such child or children and the descendants of such child or children as the said Amanda might have living at her death, etc. Blit the conveyance contained a power of disposition authorizing the trustee, by the written direction and request of said Amanda L. Wilson, to exchange or sell the lot, and in the event of a sale for money to reinvest the proceeds upon the' same trusts declared in the deed; and it is declared that the rights of the remaindermen should attach only in the event that the lot should not be sold under said power of disposition. The power of sale was as much a con-' stituent part of the deed of conveyance as any other of its terms, and when duly exercised by the trustee, as was the case in this instance, conveyed the entire legal and equitable estate to the purchaser. Holding under the deed and not otherwise, the beneficiaries must take according to its provisions. They cannot affirm provisions supposed to be beneficial to them and disaffirm others in the same instrument. The grant must be accepted or rejected in its entirety. It is not permissible to claim both under and against the conveyance. — Dillon v. Parker, 1 Swanston, 359 and notes; 2 Perry on Trusts, § 596; Hatchett v. Blanton, 72 Ala. 423, 433; Sloan v. Frothingham, 72 Ala. 589.
It is not insisted that the purchaser under the power was responsible for the application of the money according to the trusts. Both at common law and by statute (Code of 1886, § 1843), the person making payment to the trustee was relieved of all responsibility in this respect, unless such purchaser colluded with the trustee and knew of his intention to waste or mismanage the fund. Confessedly the present case does not fall within the exception.
There is nothing in the case of Loeb v. McCullough, 78 Ala. 533, in conflict with the views we have announced..
The decree of the city court was not in accordance with these views and must be reversed, and a decree here rendered that the complainants have a good and indefeasible estate in the land in dispute as against the defendants, and that the defendants have no right to nor estate therein. The costs of the court of chancery must be paid one-half by the adult defendants against whom decrees pro confesso were not rendered and one-half by the complainants. The costs of appeal in this court and in the chancery court'must be paid by the adult appellees, litigating in the court of chancery.
Eeversed and rendered.