Hunter v. Anderson

152 Pa. 386 | Pa. | 1893

Opinion by

Mb.. Chief Justice Paxson,

The third specification presents the only question that requires discussion. The specification is as follows: “ The court erred in not holding that the said Morton Hunter, trustee, had no power to convey the premises in question to defendant in fee simple, free and discharged from the lien of judgments of record against either of the cestuis que trustents, or from the lien of debts not of record against the estate of Gamble Weir, deceased, or from the lien of the dower interest of the respective wives of the cestuis que trustents.”

This specification is based upon the theory that the real estate in question retained its distinctive character as real estate in the hands of the trustee, and was subject to the lien of judgments against either or all of the beneficial parties to said trust. A careful examination of the instrument of writing, bearing date 31st of December, creating this trust, leads us to a different conclusion. The duties of the trustee are thus defined in that instrument: “ To bid in and purchase at said sheriff’s sale any or all of said real estate of said William McCallin, if the same should, in their opinion, become necessary in order to secure the interests of said parties of the first part, and of said Gamble Weir, and to take a deed or deeds therefor from the sheriff in the name of said trustees conveying to them the estate in said lands as trustees for the use of said parties of the first part as well as for the use of said Gamble Weir, upon the trust that said trustees shall hold said lands so conveyed for the purpose of making sale thereof, and that said trustees will make sale thereof as early as practicable for the purposes of converting the same into money, at either public or private sale, for such prices and on such terms as they shall deem best, and that said trustees make, execute and deliver all necessary deeds and conveyances for the real estate so sold by them, without any liability on the part of the purchaser to see to the faithful application of the purchase money, and that said trustees will, from time to time, pay over to said parties of the first part and to said Gamble Weir, the proceeds of such sales, less the expenses necessarily incurred and their commissions, to be divided among them in proportion to their several and respective interests in said judgment.”

The effect of this agreement was to place the title of the real estate when' purchased in the trustees named therein for the purpose of sale, and distribution of the proceeds thereof in money to and among the parties entitled thereto. We think this was a conversion, and that the property in question was not bound by the lien of judgments against any of the beneficial parties. The principle, that a direction to sell land works a conversion, is so well settled that it is almost needless to cite authority. It is sufficient to refer to Jones v. Caldwell, 97 Pa. 48. The principle that land which has been converted is not bound by a lien against a cestui que trust, is also well established, and is ruled in that case; and the land which has been converted is not affected by the dower of the wife of a cestui que trust: Willing v. Peters, 7 Pa. 287.

The only remaining question relates to the power of the surviving trustee to convey. The trust was conferred on the trustees by name, and did not in terms require the whole number to act. Without entering upon an elaborate discussion of this point, we are of opinion that the act of 5th of May, 1855, P. L. 415, which was a supplement to the act of 14th of June, 1836, P. L. 630, covers it fully. It was held in Philadelphia & Reading Railroad Company v. The Lehigh Coal and Navigation Company, 36 Pa. 204, that in case of the death of one or several of the trustees, a power of sale under the act of 3d of May, 1855, is well executed by the survivors.

Judgment affirmed.