McNeill v. Lee, 79 Miss. 455

McNeill v. Lee

79 Miss. 455 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

On March 15, 1890, William McNeill executed his note to W. D. Lee for $408.47, payable October 15, 1890; and to secure the same he executed a deed of trust on certain lands therein described, by which he conveyed said land to W. D. Lee, Sr., and therein appointed A. J. Willis trustee to sell said land in default of payment of said debt. Said deed of trust authorized said Lee to appoint another trustee in place of Willis, if for any cause he should not be present, able, and willing to execute said trust. The property, on due notice, was sold by Willis, to the beneficiary (Lee) for $40, and a conveyance of it was made by Willis to Lee. This bill is filed to annul the conveyance of said land by Willis to Lee, and for redemption. A demurrer to the bill was sustained, and complainant appeals.

The proceedings under the deed of trust are attacked upon three grounds: (1) Because Willis, trustee, is said to have lost his power to make said sale; (2) because the bill demurred to alleges that there was no default on the part of McNeill in the payment óf said debt; (3) because no title to the land was vested in Willis.

*4591. The sale of the property by Willis was made on June 10, 1895; and tbe bill alleges that on February 9, 1893, W. D. Lee, Sr., appointed his son, W. D. Lee, Jr., as substituted trustee, and for that reason the sale of the land by Willis was void. The authority to appoint a substituted .trustee under a stipulation contained in a deed of trust is a strict power, and such an appointment cannot be made, except upon the happening of the precise event specified in such deed. Guion v. Pickett, 42 Miss., 77. Hill on Trustees says: “No person interested could be advised to rest satisfied with the appointment of a new trustee under a power unless the terms of the power clearly and distinctly authorized the appointment in the particular event which may have occurred.” Hill on Trustees (4th ed.), *190; Guion v. Pickett, 42 Miss., 80; 2 Perry on Trusts (4th ed.), sec. 602($'). The deed in this case only authorized Lee to appoint a new trustee should Willis not be present, able, and willing to execute the trust; and here Willis is not only present and willing, but actually executed the trust in compliance with the authority vested in him. The attempted appointment of W. D. Lee, Jr., as trustee, by W. D. Lee, Sr., in February, 1893, was ineffectual for any purpose. It did not serve to remove Willis, or to diminish his authority in any respect. It was a void act, and the sale was properly made by Willis.

2. The bill alleges that there had been no default when the sale was made, but the deed of conveyance by Willis to Lee is made an exhibit to the bill, and it recites that default had occurred in the payment of the debt; and the rule is settled here that where the statute makes an exhibit a part of the bill,, and it is contradictory to some allegation of the bill, the fact will be taken to be as stated in the exhibit. House v. Gumble, 78 Miss., 259 (29 So. Rep., 71).

3. The sale of the land by Willis and a conveyance of it to the purchaser was entirely competent. The deed of trust of McNeill conveyed the land to Lee, and so the legal title was in Lee; but Willis was appointed trustee, with the power to sell, *460and the power to sell included the power to convey in pursuance to a sale made; for, in respect to land, which can be conveyed only by writing, the power to sell carries with it the power to convey, otherwise the power would be inoperative. 2 Perry on Trusts (4th ed.), sec. 602(^)/ 2 Ping, on Mortg., sec. 1405; Fogarty v. Sawyer, 17 Cal., 589, 592. In Moore v. Lackey, 53 Miss., 85, a power, in one who had no title or interest in the land, to sell and convey the same in certain events was held to be good. We reaffirm the principle, to the extent involved here — that is, the right of Willis to sell the land conveyed by McNeill to Lee — and further hold that the power in Willis to sell the land included a power to convey it; for otherwise the power to sell would be an idle stipulation, which cannot be imputed as the intention of the parties. The intention of the parties must be made effectual, if consistent with law, and the power to sell land must be ineffectual unless the sale is followed by a conveyance.

Affirmed.