124 Cal. 234 | Cal. | 1899
Action to have a trust declared in favor of plaintiff as to certain lots -situated in Santa Barbara, and that defendants E. H. and W. H. Penfield convey said lots to plaintiff. They denied the alleged trust, and averred that defendant E. H. Penfield took a conveyance from plaintiff of the lots in question and holds the title in trust, as he alleges it to be.
Defendant W. H. Penfield filed a cross-complaint asking foreclosure of a deed, held by him, as a mortgage to one of the lots, the subject of the alleged trust. J. 0. Gilbert is husband of plaintiff, and is -made defendant in the cross-complaint.
The court, as conclusions of law, found plaintiff not entitled to the relief asked by her; that the legal title to the lots in question is vested in defendant E. H. Penfield, subject to certain trusts set forth in the findings; that defendant W. H. Pen-field has a valid subsisting mortgage on certain of -the property and is entitled to foreclosure thereof, and that the rights of plaintiff and said J. 0. Gilbert are subordinate to the lien of said W. H. Penfield. Plaintiff appeals from an order denyiüg her motion for a new trial, but does not appeal from the judgment. The only question presented by counsel for appellant is, Does the evidence support the findings?
Plaintiff and defendants, the Penfields, are cousins; plaintiff came to California in August, 1887, and was then unmarried,
While claiming that the evidence does not support the findings, appellant makes the case really to turn upon the question: Had E. H, as trustee, the power to mortgage?
The evidence is conflicting in many particulars, especially as to the trust alleged in the complaint and the trust as found. There is evidence tending to show that the trust as found by the trial court correctly states the understanding of the parties, and 'as the evidence is conflicting the finding is conclusive upon this court.
Turning to the language of the trust, and interpreting it in the light of the then existing circumstances and the purpose for making the conveyance, we think the trust carried with it the power to remortgage the property to take up the Hassinger mortgages, foreclosure of which was threatened. The court found on sufficient evidence that market values had greatly fallen, and sale could not be made to any advantage. The only practical way out of the danger which lay in foreclosure by Hassinger was to find some one who would carry the Hassinger mortgages. It was not of any importance to plaintiff whether the one who came to her relief should do so by taking an assign
The power given by the trust was: “To provide for taking up the two Hassinger mortgages, and to hold the property until a favorable time for the sale of the same should come.” The evidence was that a sale could at no time, after plaintiff conveyed to E. H., have been made for enough to pay the indebtedness secured -to be first paid by it. That this contingency of remortgaging must have been contemplated is, it seems to me, obvious from the clause authorizing E. H. “to provide for taking up the two Hassinger mortgages,” followed by the clause “and to hold the property until a favorable time for the sale,” et cetera. How else could he provide for taking up these mortgages if the sale of the property was to be postponed indefinitely? It is true, as claimed by appellant, that every act of the trustee not authorized by, -or which is in contravention of, the trust is void; but a trustee has “authority to adopt measures and to do acts which, though not specified in the instrument, are implied in its general directions, and are reasonable and proper means for making it effectual.” (2 Pomeroy’s Equity Jurisprudence, sec. 1062.) I think the power to -mortgage is not only clearly implied in the directions given, but that the natural reading of the trust gives the authority-.
It is not necessary, therefore, to fall back upon the alternative proposition of defendants in support of the decree of foreclosure, to wit, that W. H. was subrogated to the rights of Has-singer, and -that the lien of the latter was preserved, although the evidence of the debt was extinguished; and that, even if the new mortgage made by E. H. to W. H. was void, the original or Hassinger mortgages were revived for the protection of W. H., who advanced the money.
Appellant points out several alleged contradictions in the findings—for example: The court finds that the execution of
The foregoing disposes of the points made by appellant’s brief; and, as we discover no error in the conclusions of the court, it is advised that the order denying the motion for a new trial be affirmed.
Haynes, C., and Pringle, C., concurred.
For 'the reasons given in the foregoing opinion the order denying the motion for a new trial is affirmed.
Henshaw, J., Temple, J., McFarland, J.