Moore v. Isbel

| Iowa | Apr 23, 1875

Beck, J.

I. It is a familiar doctrine that the grantor of a trust estate may provide, in the instrument creating it, for the succession of trustees, or the transfer of powers conferred from persons or classes of persons named to execute the trust, 1. trust change of trustee: sale. to others designated to supercede or succeed them, “The person who' creates the trust may mould it wPafceyej. form he pleases; he may therefore determine in what manner, in what event, and upon what condition the original trustee may retire and new trustees be substituted.” Perry on Trusts, § 287; Hill on Trustees, p. 176. Conditions of the character of the one in the deed of trust under which defendant’s claim title, providing for the appointment of a trustee to succeed the one named, are not infrequently found in instruments of this character, and, so far as we are advised, have always been held valid and the acts of trustees appointed under them upheld. The grantor may provide in the instrument that the new trustee shall be appointed by the creditor, the cestui que trust, or by some officer, as judge of probate, county judge, etc., or by an individual named filling a specified office and his successors in office. If the appointment be made in the .manner provided tbe new trustee will thereby become clothed with all the powers conferred by the deed upon the person therein designated.

Upon the execution and delivery of the trust deed the legal title of the land vested in the trustee, for the purpose of carrying out the trust as expressed in the instrument. When the new trustee was designated as provided for in the deed the title and power conferred by the instrument passed to him. Beal v. Blair, 31 Iowa, 318.

These are familiar doctrines and rules; the citation of authorities in their support is unnecessary. They completely answer the position of appellants’ counsel that a new trustee could not be appointed to take the place of the person named in the deed until he was removed and thus divested of the estate.

II. In January, 1861, the county judge of Woodbury county, upon proper application and a showing of the facts necessary to authorize him to act, entered in the records of the county court an appointment of Leech as trustee to succeed Campbell, in the following words: “Now comes W. E. Henry, by his agent, Eobert E. Leech, and represents to the court that John L. Campbell refuses to act as trustee in accordance with the provisions of a certain trust deed between M. F. Moore and John L. Campbell, trustee, said deed being given to secure an indebtedness from Moore to James Isbel, and therefore asks that said Leech may be appointed trustee; the said trust deed providing that, in case of the death, inability or refusal of said Campbell to act, the county judge was empowered to appoint a trustee in his place, hereby appoints Robert B. Leech, and authorizes him to act as such.

JohN P. Allison, County Judge.”

Various objections are made by plaintiffs’ counsel to this appointment, and it is claimed no power was conferred by it upon the new trustee. They demand but brief consideration, many of them being sufficiently answered by the statement above made of the doctrines applicable to the facts.

1. It is insisted that the condition of the deed of trust authorizing the “ acting county judge ” to appoint a successor to the trustee named conferred that power upon the person then filling the office of county judge, the words designating the office being ddscriptio personarum. The language warrants no such conclusion. It conferred the power of appointment upon the individual who filled the office of county judge at the time the appointment should be demanded.

2. The record shows that the appointment was made by the acting county judge. Now it cannot be claimed that the act of appointment will be defeated because it is witnessed by the record of the county court. The record is the evidence of the act of the county judge, and shows that he exercised the power .conferred by the trust deed. In the absence of any provision as to the manner of the appointment and evidence thereof, it is very plain that no objection can be urged on-the ground that the appointment is made to appear by the record of a court.

3. The appointment by the county judge designated the person to discharge the powers conferred by the deed.- It did not confer power or affect the title of the real estate. This was all done by the deed of trust itself. The appointment was simply a proceeding under and provided for by the deed of trust. If witnessed in a manner competent to perpetuate evidence of such an act the law will require nothing more. The objections, therefore, that the appointment should have been by and delivered to the new trustee, etc:, are without foundation. It cannot be doubted that the appointment of the new trustee was made by the county judge, for the appointment is made of record in the county court. That tlie facts existed which authorized the appointment is fully established by evidence aside from the record itself.

III. It is next urged that there is no evidence of the advertisement of the lands for sale as required by the trust 2 pleadings-ádmissions. ^ee& The petition alleges a sufficient advertisement. But plaintiffs insist that, as defendants deny generally the allegations of the petition, the advertisement cannot be taken as admitted. But the answer of defendants was the advertisement substantially as it was set out by plaintiffs in the petition. The allegations of the parties agreeing as to the fact, it must be regarded as admitted by both sides. The general denial found in the answer will apply only to facts not admitted by defendants.

IY. It is insisted that the sale was not made at the place prescribed in the deed of trust, namely, the court house door 3. trust formanc^of condition. Sioux City. It is shown that the sale took P^ace at the door of the building used as a court house, where the courts were held. The county had no other court house, and this building being used for holding courts was called the court house. It is very plain that this was the place designated by the trust deed for the .sale. If it could not have' been held there, the deed would have been defeated, for there was no other place which comes within the description of this instrument. We would certainly hesitate to put an interpretation upon the deed that would defeat it, by rendering the performance of its conditions impossible.

Y. In our opinion the defendants hold a valid title to the property in dispute under the trustee’s sale and deed. It becomes unnecessary to examine the questions presented involving the tax titles set up by defendants.

AFFIRMED.