Orr v. Rode

101 Mo. 387 | Mo. | 1890

Barclay, J.

In the construction of such an instrument as the deed from Rode to Strong in this case the first and best rule of interpretation is to gather from the entire document, as best we may, the intention of the parties to it and give effect to such intent when manifest. Gibson v. Bogy, 28 Mo. 478.

The deed in question conferred on Strong not merely a power of sale but the legal estate, as well, in trust for certain purposes defined. The prime object of the trust was declared to be the payment of the debts of Rode. This court has held that, where such was the object, a power of sale necessarily was implied, even when unexpressed, the property itself being bound by law for the payment of the debts. Porter v. Schofield, 55 Mo. 56. To the same effect are Cherry v. Greene, 115 Ill. 591, and Haggerty v. Lanterman, 30 N. J. Eq. 37. But, in the case before us, the authority to sell is definitely given, in clear terms, with further power to make any arrangements with the creditors of Rode which the trustee might deem advisable, and to charge the property by mortgage to secure the trustee’s individual note for such debts, etc.

One rule, of quite frequent application to this subject, is that where a power of absolute sale is vested in • a trustee for a special purpose, necessarily contemplating the raising of funds (as here, for the payment of debts), such power impliedly includes that of raising such funds by mortgage, which is, in its nature, merely a conditional sale. Loebenthal v. Raleigh, 36 N. J. Eq. 172; Bank v. McKnight's Heirs, 2 Mo. 42. Moreover, the law requires no more than a substantial execution of the powers conferred on such a trustee. Warner v. Ins. Co., 109 U. S. 369 ; Cumming v. Williamson, 1 Sandf. Ch. 17; Mead v. McLaughlin, 42 Mo. 198.

Here express and undoubted authority was given to satisfy any of Rode’s debts with the trustee’s own note, and to secure it by mortgage on the property. What difference in effect can be pointed out between so doing and pursuing the course which the trustee actually adopted, of raising funds to meet such debts, by such a note so secured % We think there is no substantial difference, in view of the evident purpose and intent of the entire trust. Yiewing the instrument of authority as a whole, we regard it as fully authorizing the trustee Strong to make the charge upon the property which forms the basis of this foreclosure suit.

II. The trial court excluded evidence, offered by the defendants, tending to prove that the debts of Rode had been paid before the execution of the deed of trust by Strong. This was not error. It is provided by our statutes, that “No person who shall, in good faith, pay money to a trustee, or other person acting in a fiduciary capacity, authorized to receive the same, shall be responsible for the proper application of such money ; nor shall any right or title, derived by him from such trustee or other fiduciary, in consideration of such payment, be called in question in consequence of any misapplication by such trustee.” R. S. 1879, sec. 3937.

As the instrument under review created a trust, and not a mere power, as we have already ruled, it was not obligatory upon one dealing with the trustee, to see that the funds raised for the purposes of the trust were properly applied. So long as the trust continued, the authority to raise the funds contemplated by it, for the purposes and in the manner indicated in it, continued. It was not obligatory on persons, acting in good faith, and without knowledge of any breach .of trust, to see whether or not the purposes of the trust had been fulfilled before dealing with the trustee in relation to the property vested in him.

III. Some of the defendants interposed the statute of limitations as a bar to the foreclosure of the deed of trust sued upon. There is no evidence before us of any adverse possession by the mortgagor or grantor in the deed of trust, or of those standing in privity to either. Therefore, this point in the case is controlled by the rulings in Lewis v. Schwenn, 93 Mo. 26, and Booker v. Armstrong, 93 Mo. 49, if they are to be followed.

We have been asked, in a masterly argument of counsel for appellants, to review and overrule those decisions ; but, having given the whole subject to which they relate further consideration, we are rather more strongly inclined to adhere to them and confirm the principles they declare, that the statute of limitations governing real actions applies to suits of this nature (to foreclose mortgages or deeds of trust), and that it is immaterial to such foreclosure that the note secured may be barred by the limitation applicable to personal actions. Without further elaboration it may suffice to say that we approve the' views expressed in the cases last referred to, and follow them.

Whether the finding of the trial court, in so far as it established a personal indebtedness of James W. Strong, as maker of the note, was correct or not, in view of the limitation law applicable to actions on notes, is unimportant, since the separate answer of Strong does not plead that statute. It is scarcely necessary to repeat that, ■ ordinarily, the bar of' limitation, to be available, must be .in some way set up. Without this its bearing on the rights of the parties cannot properly be considered.

IY. Defendants complain of the action of the court in permitting plaintiff to testify at the trial, Rode, the grantor in the deed to Strong, being dead ; but it will be seen by reference to the report of his examination (in the statement of the case) that plaintiff was only allowed 'to testify to conversations and dealings with J. W. Strong, the trustee.

Many years ago this court ruled that the strict letter of the statute, regulating the admissibility of interested testimony where the adverse party is dead, should yield to its reason and spirit which aimed at placing the parties upon an equality. R. S. 1889, sec. 8918; Coughlin v. Haeussler, 50 Mo. 126. Since that construction was announced, the statute has been revised and re-enacted without change in the language so construed. We, therefore, accept that view of it as having received legislative approval by such re-enactment and as furnishing a proper rule for our guidance.

The reason and spirit of the law do not sanction the exclusion of the evidence here in question, even if Strong be regarded as a mere agent of the grantor, Rode. Though the latter was dead, Strong, at the time of the trial, was living and competent. The statute, when given its rational interpretation, does not exclude the evidence of one party to a contract when the transaction on the other part was had with an agent, still living and competent, though the principal (for whom the business was transacted) may be dead. Ward v. Ward, 37 Mich. 253.

But, as we have already remarked, Strong was no mere agent of Rode. He was trustee of an express trust and might have sued in his own name to enforce his rights as trustee, and, within the scope of the trust, had power to contract as such as a principal. Having done so, the testimony of Orr, as to dealings with him in that capacity, were admissible, even under the strict letter of the statute.

Y. Whether or not the trial court erred in including, in the amount of its finding, the payment by plaintiff, of a judgment in favor of the state for delinquent taxes on the realty described in the deed of trust to him, is not a proper subject for review, as the attention of the trial court was not called to the subject in any of the reasons assigned for a new trial. No claim of any excessive finding was then made and consequently none can now be entertained. In civil causes, no exceptions can be taken in this court except such as have been expressly decided by the trial court. R. S. 1889, sec. 2302.

VI. Certain of the parties defendant have (so far as the record before ns- shows) no interest or estate in the property described in the deed of trust of Strong. The judgment of the trial court should, therefore, have been in their favor, dismissing the petition as to them; but, as they are not necessary parties to the litigation, it is proper for us, in obedience to the plain command of the statutes, not to reverse the judgment for this reason, but to direct it to be amended by striking out their names as parties and affirming the judgment. R. S. 1889, sec. 2101. For this course there are several precedents. Cruchon v. Brown, 57 Mo. 38; Crispen v. Hannovan, 86 Mo. 160.

It is, therefore, ordered that the names of Silas Woodson, A. D. Green, S. B. Green and John S. Crosby, defendants, be stricken out, otherwise, the cause dismissed as to them, and the judgment of the circuit court be affirmed, respondents to pay the costs upon this writ of error.

All the judges concur.