56 S.C. 78 | S.C. | 1899
The opinion of the Court was delivered by
This is an action to foreclose a real estate mortgage claimed to> have been executed under a power conferred upon the mortgagor in a deed of trust. The Circuit Court held that the mortgage was not authorized under the power, and SO' dismissed the complaint. The appeal involves the construction of the trust deed. This deed was. executed in 1881 by Johnson J. Knox to William D. Blanding, his heirs and assigns, and conveyed the mortgaged lands, “In trust, nevertheless, for the said William D. Blanding and his heirs for the use of the said Johnson J. Knox for and during his natural life, and after his death leaving the said Frances surviving him, for the use of the said Frances Knox, her heirs and assigns, forever, freed from all trusts and limitations. But should the said Johnson J. survive the said Frances, then upon thedeath of the said Johnson J. Knox, to and for the use of such person or persons upon such terms and in such parcels as the said Frances Knox shall by her deed, duly executed, convey the same, or by her last will.and testament, made according to law and
After reciting the facts in accordance with the foregoing statement, the Circuit Court disposed of the case as follows: “The contention of the defendant is that there being no power conferred upon either J. J. Knox or Frances Knox to mortgage this land, that the mortgage is void, and that, therefore, the Court cannot decree a foreclosure as prayed for, and sale of the mortgaged premises. It is not denied that J. J. and Frances Knox could mortgage or assign their life estate, but it is insisted that the mortgage died with them, and the fee which has become vested in these defendants cannot now be sold under foreclosure proceedings to pay the debt of the Knoxes secured by the lien of the mortgage. ' The power to mortgage, if it existed, is derived from the trust deed. That deed is the foundation of the authority to execute said mortgage, and if it appears that the trust deed conferred no such power, then I take it that the mortgage must fall. The whole issue in the case may be summed up in the question: Did the trust deed to- Blanding confer upon the Knoxes the power to. execute this mortgage, and if it did not, is not such mortgage void? It is abundantly settled by the authorities in this State that powers are to be strictly construed and must be 'executed and carried out as directed by the instrument creating- the power. Bilderback v. Boyce, 14 S. C., 535; Creighton v. Pringle, 3 S. C., 77; Blount v. Walker, 28 S. C., 545; Salinas v. Pearsall, 24 S. C., 184.” After quoting from the cases of Ballou v. Young, 42 S. C., 175, and Allen v. Ruddell, 51 S. C., 371, the Court adjudged the mortgage void for want of power in the mortgagor.
The exceptions, nine in-number, present practically two questions: 1. Whether, under the doctrine of resulting trusts, Frances Knox, having paid the consideration for the deed of 1881 to. Blanding, had an equitable estate in fee, in remainder, after the life estate of Johnson J. Knox, which became bound by the mortgage. 2. Whether the mortgage
The judgment of the Circuit Court is reversed, and the case remanded for further proceedings.