83 Md. 325 | Md. | 1896
delivered the opinion of the Court.
• This is an action of ejectment brought by the appellant against the appellee for an interest in a lot of ground in Cumberland. The appellant claims under a sheriff’s sale; and the appellee under a sale by trustees acting under the authority contained in a deed executed by James Gunning, who was seized of the fee-simple estate therein as hereinafter stated. The case was tried before the lower Court on an agreed statement of facts, without the aid of a jury.
The facts are substantially as follows : (i). On January 18th, 1883, Joseph M. Gunning confessed judgment in favor of Stevenson & Slingluff for the sum of $212.03, *n_ terest and costs ; that said judgment is a valid claim against the estate of Joseph M. Gunning, and is wholly unpaid. (2). That on the 21st of February, 1890, James Gunning executed a deed of trust conveying personal and real property to his three sons, John B., James H. and the said Joseph M. Gunning, who accepted said .trust, and at once entered upon the discharge of the duties as such trustees, and are (except said Joseph M., who has since died), still acting as trustees under said deed. (3). That on February 21st, 1893, Stevenson & Slingluff caused a writ of fieri facias to be issued- on their said judgment, by virtue of which the sheriff of Allegany County levied upon the interest of said. Joseph M. in the real estate conveyed by said deed of trust and described in the declaration filed in this cause; the said Joseph M., however, moved the Court to ‘quash said levy, which the Court refused to do. (4). On 'the 15th of May, 1893, the said Joseph M. filed his bill of complaint in the lower Court as a Court of Equity, asking an injunction to restrain said judgment creditors and the sheriff from proceeding further under said execution, and at the hearing of said bill the same was dismissed. (5). That James Gunning, the grantor in said deed of trust, died on February 28th, 1893. (6). On the 18th of August, 1893, said judgment creditors caused an attachment by way
The deed from James Gunning to his three sons, to which reference has been made, was before this Court in Byrne v. Gunning, 75 Md. 30, and in that case will be found a full
There is but one question which we consider important to be decided on this appeal, and that is, did Joseph M. Gunning take such an interest or estate in virtue of the provisions of the deed from James Gunning to said Joseph and his two brothers, as could be seized and sold on execution ? The case in 75 Md., supra, was a bill in equity filed by James Gunning, the grantor, seeking to set aside said deed, on the ground that the deed did not conform to the directions given by the grantor for the drafting of it, and that it was executed by him in its present form, wholly by mistake. This Court in the opinion delivered by Mr. Justice Bryan, had occasion to carefully examine the various provisions of the deed, especially with respect to the estate the grantee held therein, from the date of the deed to the time of his death. Whilst it is true, as Judge Bryan states, “The language in which the trust is described is a good deal involved, and somewhat obscure, and the punctuation in some instances' adds to the obscurity,” the general intention, however, appears to be plain enough. The grantor wished to have the benefit of his property for life, and after his death, he wished it to be divided among his children, and his grandchildren, who were the children of a deceased son. Further on he says, “As we have seen that James Gunning has the right, under the deed, to occupy the real estate during his life, and is required to pay all taxes, and assessments, and to keep down all encumbrances upon it, and is entitled to the net profits, he holds the legal estate
It was clearly the object of the grantor to convey by said deed his property and estate to his three sons, in trust for his own use and benefit during his natural life, and then, in order to effectuate his other purposes, he adjusts the interests of his various children, and of other beneficiaries according to his own wishes. He provides that after his death his said trustees “ shall have full power to sell, convey, dispose of all things therein (by said deed) conveyed ” to them, and he empowers them to divide the same in accordance with the terms of said deed. The deed also provides for deducting certain advancements and names the parties to whom advancements have been made, and the amounts of such advancements are specifically stated therein. He also mentions the payment of certain gifts, and then directs that the balance remaining shall be divided into seven equal shares. To execute his wishes, and accomplish his poorly expressed purposes as contained in said deed, would be a legal impossibility without a conversion.
The power of sale in this case became operative upon the happening eo instanti, of the death of the grantor. The general rule as to when a power of sale shall take effect does not apply here, because by the terms of the deed, as declared by this Court in 75 Md., supra, it is postponed to the death of the, grantor. Mr. Pomeroy, in his work on Equitable Jurisprudence, 3 vol., sec. 1160, in considering what words are sufficient to effect a conversion, says, “ It
Whenever trustees are clothed with a discretion, and exercise it, and thus actually make a conversion, as was done in this case, the property will in general pass' in the nature and form to which they háve converted it. Bourne v. Bourne, 2 Hare, 35; In re Ibbittson’s Estate, L. R. 7 Eq. 226; Rich v. Whitfield, L. R. 2 Eq. 583 ; Lawrence v. Elliott, 3 Redf. 235 ; Van Vechten v. Keator, 63 N. Y. 52; White v. Howard, 46 N. Y. 144.
From the views which we entertain on the subject of conversion, vel non in this case, it is wholly unnecessary to discuss the many questions and distinctions which have been made in the briefs of counsel; the case having been submitted without oral argument. But independently of the views expressed, we are very clearly of opinion that the
Judgment affirmed with costs.
