55 P.2d 1050 | Wash. | 1936
This is an action to set aside a sale of real property under execution. The facts out of which the controversy arose are as follows: Rex Kincaid is the son of Julia A. Kincaid, and the grandson of Julia A. Hines. The latter conveyed the property in question to Julia A. Kincaid in trust for the use and benefit of Rex. Under the declaration of trust, the trustee had the power to sell, and, pursuant to that power, she entered into a contract to sell the property to the defendants Wm. C. Hensel and Estella P. Hensel, his wife. This contract was dated November 10, 1931. September 28, 1933, the trustee declared a forfeiture of the contract.
In February, 1934, the Hensels instituted an action against "Julia A. Kincaid, individually and as trustee for Rex Kincaid, and Rex Kincaid, a minor," to recover the purchase money paid, the value of improvements and rents collected by the trustee. Rex Kincaid interposed a demurrer to the complaint, which was sustained on the ground that, as to him, the complaint did not state facts sufficient to constitute a cause of action. The cause proceeded to judgment in the sum of $4,500 against "Julia A. Kincaid, individually and as trustee for Rex Kincaid." Upon this judgment, execution issued, under which the trust property was sold. It is this sale which the cestui que trust, Rex Kincaid, seeks *505 to set aside in the present action. In the court below, he was awarded a decree, from which defendants appeal.
As we understand appellants' position, it is, first, that the judgment against "Julia A. Kincaid, as trustee for Rex Kincaid," was a judgment against the trust estate; and second, that the judgment is res judicata as to Rex Kincaid. We do not think either contention tenable.
[1] First: A trustee of an express trust acts and deals as a principal, not as an agent. When a trustee contracts as such, he is bound by the contract, for the estate cannot promise. Taylorv. Davis' Administratrix,
"The law will not allow trust property to be impaired or dissipated through the negligence or improvidence of trustees, nor will it permit them to create any new or additional liabilities against the same. The beneficial interest thereof belongs to the cestuis, and it must be held intact for them." *506
The rule is applicable even though the liability of the trustee is such as would entitle him to reimbursement from the trust estate. Austin v. Parker,
It follows that a judgment against the trustee, as such, does not bind the trust estate, and execution issued on such a judgment cannot be levied against the trust property. Clinch v.Ferril Weslow,
[2] Appellants cite Rem. Rev. Stat., § 180 [P.C. § 8256], and the cases of Martin v. Moore,
The argument is that, since the title to the property is in the trustee, the beneficial interest of the cestui can be reached through a judgment against the trustee, as such. We do not think either the statute or the cited cases are susceptible to such interpretation. Of course, the trustee of an active trust can, by the exercise of powers conferred by the deed or declaration of trust, bind the trust estate. But the trust property can be subjected to the obligation only by an equitable action in rem. Moore v. Stemmons,
But no such case is presented here. This was not an action inrem. The judgment did not run against the trust estate nor against the cestui, Rex Kincaid. It was strictly a money judgment against Julia A. Kincaid, and bound her alone. The description of her as trustee was surplusage. Odd Fellows HallAss'n v. McAllister,
[3] Second: What we have said disposes of the contention that the judgment against the trustee was res judicata as to Rex Kincaid. His demurrer to the complaint in that case was sustained. The judgment was not against him. The trust estate could be subjected to a judgment only in the way we have indicated, namely, by an equitable action in rem. And even then, the trust estate could not be subjected to the judgment, unless the liability could be said to have arisen from the exercise of powers contained in the declaration of trust.
From this record, it does not appear that any such issues were presented in the case of Hensel v. Kincaid, Trustee. And certainly, the judgment does not adjudicate rights upon any such issues. Wahl v. Schmidt,
"Only parties or their privies can be bound by the judgment. None of the beneficiaries of the trust estate was a party to the action. The trustee, Schmidt, was not a privy to the beneficiaries. (Roberts v. Yancey,
We are of the opinion that neither the trust estate nor thecestui, Rex Kincaid, were bound by the judgment against Julia A. Kincaid. Hence, execution on the judgment could not be levied on the trust property.
Judgment affirmed.
MILLARD, C.J., BEALS, MAIN, and HOLCOMB, JJ., concur. *509