42 Miss. 77 | Miss. | 1868
delivered the opinion of the court.
It appears from the record in this case that on the first day of March, 1860, one Challes F. "Wergandt made his certain promissory note payable twelve months after that date, to Jane E. Pickett, Micajah Pickett, for the sum of $800. And to secure the payment of said note and interest thereon, the said Wergandt made and executed a deed of trust, bearing oven date therewith, by which he conveyed certain real estate, situated in the city of Jackson in this State, to Bobert A. Clarke, as trustee, authorizing him to sell and convey the same in default of payment of said note and interest, and apply the proceeds of the sale to the payment thereof, and in case the said trustee shall neglect or refuse to -execute the trust reposed in him, then the said Jane E. Pickett may appoint some other person to execute the said trust, who shall have, and execute, all the powers and duties conferred and imposed by said deed of trust, upon the said Bobert A. Clarke, trustee as aforesaid.
That the said Bobert A. Clark died without executing the trust, and that the said Jane E. Pickett, and Micajah Pickett, her husband, did, in writing, on the 10th day of April, 1868, appoint James B. Clarke trustee, to act' in the place and stead of the said Bobert A. Clarke, deceased, and that the said James B. Clarke, at the request of said Jane E. Pickett, was proceeding to advertise and sell said property, to pay the amount alleged by
The said defendants, in their answer, insist that the said note, and interest thereon, remain wholly due and unpaid, and that the said James B. Clarke, appointed trustee as aforesaid, was fully authorized and empowered to sell and convey said real estate under said deed of trust, to pay and satisfy the amount due of principal and interest on said note.
And on the 28th day of May, 1868, the cause came on to be heard on the motion of the defendants to dissolve the injunction, and dismiss the bill of complaint, on bill, answer, and exhibits; when the court sustained the motion, dissolved the injunction, and dismissed the bill; and from this decree the cause is brought here by appeal.
The main question presented for our decision is, whether Jane E. Pickett had the power under the deed of trust, upon the death of the trustee, to appoint another trustee in his stead, to execute the trust.
In the construction of powers, the intention of the parties, if compatible with law, governs the court. But that intention is to be collected from the instrument creating the power. And with regard to the appointment of a new trustee, the power authorizing it should express plainly the cases in which a new trustee may be appointed, and it should embrace every event that can render such appointment necessary,— such as the neglect or refusal of the trustee to act, his death, absence from the coitntry, wish to retire from the office, or incapacity to discharge its duties. Hill on Trustees, 251. The appointment of a new
In tbis case, it cannot, with any propriety, be said that Robert A. Clarke, tbe trustee appointed by tbe party creating tbe power, neglects or refuses to execute tbe trust, and as by tbe terms of tbe power there is no other event wbicb would authorize tbe appointment of a new trustee by tbe cestioi-gue trust, we arrive at tbe conclusion that Jane E. Pickett bad no power to appoint James B. Clarke a trustee to execute tbe trust. But upon tbe death of tbe trustee appointed by tbe party executing the deed of trust, she should have resorted to a court of chancery for tbe appointment of a new trustee to execute tbe trust.
Tbe bill of complaint charges that tbe note, to secure tbe payment of wbicb tbe deed of trust was executed, has been paid. Tbis is denied by tbe answer. In tbis state of tbe ease, if it bad been right to dissolve tbe injunction, it was certainly wrong to dismiss tbe bill. Parties are entitled to five months for taking testimony after answer filed, unless tbe complainant shall admit tbe answer to be true.
Eor these reasons, tbe decree must be reversed, and cause remanded.
