43 Ind. App. 83 | Ind. Ct. App. | 1909
This suit was brought by the appellee to quiet her title in and to a certain ten-acre tract of land in Tip-ton county. Appellant May McNew was admitted as a party defendant on her petition, and filed a cross-complaint seeking to quiet title in her for the same premises. Issues were formed, a trial had, special findings rendered, and conclusions of law stated thereon. Exceptions were severally reserved by each appellant to each conclusion of law stated. Appellant separately moved for a new trial, which motion was overruled, and a decree was entered on the special fincff ings in favor of the appellee. Appellants join in the assignment of errors in this court, and the errors assigned and relied upon for a reversal are that the court erred in its conclusions of law upon the facts.
The appellee claims title to the premises in dispute under a trust deed executed by Anna S. Price to Philander F. Scudder. Appellant May McNew claims title under a deed executed to her by Scudder, the trustee, subsequently to the death of Anna S. Price, the grantor in the trust deed, and
“This indenture witnesseth, that Anna S. Price, unmarried, and over twenty-one years of age, * * * conveys and warrants to Philander F. Scudder, * * * in trust, subject to and for the payment of two mortgages heretofore executed by the grantor and payable to the common school fund and William R. Oglebay, respectively, and for the support of the grantor, giving to the grantee herein full power to sell and dispose of the same, or so much thereof as, in his judgment, may be necessary to carry out the same, or to renew the mortgages thereon, giving him full power to sell and convey the same by deed, or to renew by mortgage, to carry out the purposes, and at the death of said Anna S. Price if any of said real estate, or the proceeds thereof, remain, then, after deducting reasonable compensation for the grantee herein, the remainder to go to, and become the property of, Anna Rebecca Nifong.’ ’
The appellee is the same person named in the deed as Anna Rebecca Nifong, she having subsequently intermarried with one Vert.
The court found, among other things, that there was still due to the trustee for his services, at the time of the death of said Anna S. Price, the sum of $200, no part of which had been paid. There is also a finding that there was due to the appellants, at the time of the death of the grantor, the sum of $80, for services rendered in taking care of her in her last illness. The land was sold by the trustee, and conveyed to the appellant May McNew, subsequently to the death of Anna S. Price, to pay the $200 due to said trustee as compensation, to pay appellants the sum due them for taking care of said Anna S. Price during her last sickness, and to pay the $70 funeral expenses of said Anna S. Price, which were paid by the trustee.
Appellee contends that the deed of Anna S. Price conveyed the remainder in fee in said land to her, subject only
Appellants contend that the deed of Anna S. Price conferred a power on the trustee to sell the entire estate and title in the premises for the certain named purposes, and that the deed coupled this power with an interest, to wit, the title, which lie was thus empowered to sell, and that the power to sell being thus coupled with an interest it was not revoked by the death of the grantor, but might still be exercised by him for the purposes of carrying- out the trust.
The court having found that there was $200 due to the trustee for his services, and the deed very evidently contemplating that these services should be paid for from the proceeds of the land, and investing the trustee with the power to sell the land, and with the title to the land, it follows that the sale made by the trustee after the death of Anna S. Price was not void. The caso in this respect is not dissimilar in principle from that of a deed made by a debtor to a trustee for the benefit of his creditors, wherein the trustee is authorized to sell the land aud pay the debts. The death of the grantor would clearly have no effect upon the power of
While the trustee was invested with power to sell the land to pay his compensation and the expenses incident to the support of the grantor, he was bound to exercise perfectly good faith toward the appellee in respect to the sale. The deed creating the trust makes him the trustee not only for Anna S. Price but for the appellee, and in selling the land he wa,s bound to exercise that power in the interest of appellee. The fact that, in fixing the consideration for the land, he allowed the appellants, as compensation for caring for the deceased, a sum grossly in excess of what was justly due them, raises a strong inference of bad faith on his part. The question of the'bona fieles of the sale made to the appellants seems not to have been involved in the controversy.
The judgment of the court below is reversed, and we think the ends of justice will be subserved by directing a new trial.