55 Miss. 71 | Miss. | 1877
delivered the opinion of the court.
Mrs. Morrison tendered with her bill, for acceptance, to Mrs. Kinstra, a' deed of the lands embraced in the contract made in Arkansas in-, 1868. If that shall be held to be sl compliance with the contract, she is entitled to a specific performance, unless Mrs. Kinstra interposes her coverture. The bill discloses how-Mrs. Morrison acquired the title, and its nature. It appears that this tract of land, with others, was sold in 1860 by Mrs. Morrison, guardian for her infant •daughter, George A. Morrison, on a credit, and was bought by one Joute, who not being able to pay the money, the land was subsequently sold under decree of the Chancery Court ■foreclosing a security upon it for the debt.
At that sale Mrs. Morrison became the purchaser, and took the deed to herself, “ trustee.” The explanation of the transaction, made by the bill, is that she bought the property in p'art satisfaction of the debt due to her ward, and that she had some interest in it, on account of her dower in the land, which was. also included in the sale to Joute, and took the •deed to herself, “ trustee,” to manifest that her ward was interested in the land. She states that she holds for resale for ■the benefit of her ward and herself, both to share proportionally in any profits that might be made.
It will be observed that Mrs. Morrison attempted, by priwate contract, to sell the property of her ward to Mrs. Kinstra, and undertook to procure the license of the proper •court to make the sale. But she could not in this mode bind her ward; moreover, the-law required that, under the decree, •the land must be sold at public vendue, to the highest bidder.
It will also be noted that though-the contract.was made by Mr. Kinstra, as agent or attorney in fact for his wife, it purported to be her agreement, by which she personally engaged
Mrs. Morrison could not conclude the rights of 'her ward in the manner proposed; nor is Mrs. Kinstra under any absolute obligation which Mrs. Morrison could enforce.
It must be borne in mind that the interests of the ward, who is a co-complainant; are distinctly presented in the bill, and should not be injuriously affected by the improvident and inconsiderate acts of the guardian.
Mrs. Morrison alleges that she entered into the contract without knowledge of the capacities of Mrs. Kinstra under the laws of Mississippi, and without a distinct knowledge of the condition of the title; and that she was influenced to make the contract by the representations of Mr. Kinstra, she not, at the time, having access to competent legal advice.
• The purchase of Mrs. Morrison under the decree against Joute had the effect of converting the funds of her ward into real estate. In 1860 the Probate Court had declared that it would promote the interest of the ward to turn the land into money, and had granted to the guardian license so to do — Joute, the purchaser at that sale, not having paid for the land. When it was exposed to judicial sale, to raise the money, Mrs. Morrison took the responsibility of buying in the land, as she alleges, to protect her daughter and ward — to prevent a sacrifice of the property — on account of the depressed financial condition of the country. But, in. making the purchase, she reconverted the'funds of her ward into real estate. That is to say, she bid in the land, and to that -extent satisfied "the debt to her ward. Mrs.: Morrison, before she assumed to act, might have obtained the consent -of the Probate Court to make the purchase for her ward. In that case the deed would have been to the ward.
The result of the transaction is that Mrs. Morrison has
That election cannot be made until the ward has attained majority. If the investment is a bad one, George A. could make Mrs. Morrison account for the fund. If a good investment, she could take to herself the profits and advantages of it. Pressly v. Ellis, 48 Miss. 582. That right would attach against a vendee, with notice.
Mrs. Kinstra, having knowledge that such are the claims of the ward on the land, if the contract ivere specifically carried out, would take the risk of the election the ward might make at her majority.
No rule is, perhaps, more universal than that he who asks for a specific performance must be in a condition himself to perform. Morgan’s Heirs v. Morgan, 2 Wheat. 299. The complainant must be able to make a title free from reasonable doubt. Fry on Specific Perf. 347; Bates v. Delavan, 5 Paige, 299.
Waiving an analysis of the numerous cases that could be cited, we think this doctrine is clearly deducible from them :
1. That into whatsoever character of goods, securities, or property a trust fund may be converted, it is still impressed with the trust.
2. The confusion, or mixture, of the trust estate with the trustee’s own property presents no obstacle in the way of separating the former from the mass, and dealing with it as trust estate.
Some of the cases are the following: Thompson v. Perkins, 3 Mason, 232; Overseers of Poor v. Bank of Virginia, 2 Graft. 544; National Bank v. King, 57 Pa. St. 202; Cook v. Tullis, 18 Wall. 332.
We are of opinion that the complainant has not offered a
Ought a rescission to be granted? Mrs. Morrison, as she alleges, was resident in Arkansas, with her ward, at the time she was visited by Mr. Kinstra to make the contract of purchase for his wife; that she had, as she fully learned after-wards, vague and uncertain knowledge of the state of the title, and relied upon and accepted the statements of Mr. Kinstra as correct on that subject. In the contract it was assumed, as the basis of it, that the title was in her ward, and that it would be necessary to procure the order of the proper court to sell. It is ultra vires of the powers of the guardian to bind the title and interest of the ward by a contract to sell. Such an agreement contravenes the policy of the law. The title of the ward can only be divested by proper decree and sale at public vendue, whether the interest of the ward be legal or equitable.
Moreover, the complainants cannot compel Mrs. Kinstra to perform, by accepting the title and paying the money.
It is proper, however, to retain the bill, to grant the alternative relief of setting aside the contract and taking an account of the rents.
The decree overruling the demurrer is affirmed, and the cause remanded for further proceedings.
