Reese v. Ivey, 50 So. 223

Reese v. Ivey

50 So. 223 | Ala. | 1909

SIMPSON, J.

The bill in this case, was filed by the appellants, who are the children of Minnie Reese Richardson, and Warren S. Reese, both of whom are living.

The averments of the bill are: That on May 7, 1898, Carrie B. Reese, who ivas the then unmarried sister of said Minnie Reese Richardson and Warren S. Reese, executed the conveyance, which will be copied in the statement of this case, so far as may be necessary. That Carrie B. Reese afterwards was married to William Pullum, and on August 31, 1908, died intestate and without descendants. That, during the life of said Carrie B. Reese, in 1902, said Warren S. Reese and Minnie Reese Richardson conveyed their interest in the property described in said deed to said Carrie B. Reese. That afterward, in 1902, said Warren S. Reese resigned his trusteeship under said deed to the register in chancery of Montgomery county. That, on the petition of said Carrie B. Reese, said William Pullum was, by the register, appointed trustee in place of said W. S. Reese, resigned. The register’s order recited that C. Pullum, Minnie Reese Richardson, and Corayle S. Richardson, Minors, were interested in said property. A guardian ad litem was appointed to represent them and did represent them. No bond was required of said trustee. No notices were served on the complainants in this bill. On May 26, 1902, said William Pullum, as trustee, and his said wife, Carrie B. Pullum, conveyed the property to Geo. W. Crist, on a recited consideration of $5,000. That no consideration was really paid by said Crist. *454That he placed, a mortgage on said property for $8,000 June 2, 1902, and on July 24, 1902, said Crist conveyed said property to said Carrie B. Pullum on a recited consideration of $2,200 and the assumption by said Carrie B. Pullum of the payment of said mortgage. That the entire transaction was fraudulent for the purpose of getting said trust property clear of said trust. That afterward, to wit, on August 12, 1902, said William and Carrie B, Pullum conveyed the property to J. S. Willcox for the sum of $5,500; the consideration being that he assume the payment of said mortgage debt, amounting to $3,059, and the satisfaction of a personal debt due to said Willcox, by said Wm. Pullum, of $1,250, the payment of taxes due on the property of $71.88, insurance $58, attorney’s fee $75, recording fees $325, papering the house on said property $30, and cash $1,068.37. Afterwards said Willcox sold the property to Blakey for $6,000. He sold to Hawkins, and on September 9, 1908, said Hawkins sold the same to J. R. G. Ivey, the defendant, for $7,500. That said Willcox had notice that said property was trust property, and that said sale to Crist was not bona fide for reinvestment, and was in fraud of the trust.

The bill claims: That the trust was discretionary: that the power conferred on the original trustee did not pass to said Pullum; that the deed from said Pullum and wife operated to convey only the life estate of said Carrie B. Pullum, and the life estate thereafter of said Minnie Reese Richardson, and said Warren S. Reese; that said remaindermen are in constructive possession, and said Ivey, being only a life tenant, is bailiff of said property for said remaindermen and holds possession for them, but said Ivey denies their title and claims to own said property in fee; that no suit is pending, and complainants have no right to immediate possession. *455The prayer is that the title and right of complainants and defendants be settled and determined and all doubts and disputes concerning the same be cleared by decree, and complainants be declared entitled to vested remainders in said property. The bill originally sought, also in the alternative, to make Willcox account for the loss of said remainders; but, after demurrer sustained, that feature was eliminated by amendment. Demurrers were interposed to the bill, which were sustainrl, and from that decree this appeal is taken.

“One who buys, in good faith, from a trustee having power to sell, and pays the purchase money, is not responsible for its application, unless the purchaser colluded with the trustee, or knew of his intention to waste or mismanage the funds.” — Dawson et al. v. Ramser, 58 Ala. 573; 28 Am. & Eng. Ency. Law (2d Ed.) pp. 1131, 1132. As it is not alleged that the appelleee J. R G-. Ivey knew of any mismanagement, or bought otherwise than in good faith, it is important to inquire whether the trustee had powder to sell. The deed of Caroline B. Reese conveyed to the original trustee, Warren g. Reese, “and to his successors in trust,” and the habendum clause is to him, “his successors in trust, upon the trust and conditions herein set out, to and for the uses, interests and purposes hereinafter limited, described and declared, that is to say, the said party of the second part and his successors in trust, are to have and to hold the aforegranted premises,” etc. After describing the trusts, it is provided: “That the said trustee, by and wdth the consent of said Caroline Bostwdck Reese, shall have power to sell and convey the aforegranted premises, or any part thereof discharged of the trust aforesaid.” “The said trustee,” must necessarily refer to the trustee previously described in the deed, to wit, said Warren g. Reese, “and his successors *456in trust.” This is made clear by the fact that the intent of the grantor was to keep the power of sale, within her own discretion, as the sale was to be made only with her consent. We think the power is annexed to the office of trustee. — 2 Perry on Trusts, § 503.

It is insisted, however, by appellant, that the law was not complied with, in the appointment of the new trustee, because the complainants were not brought in by notice. It will be noticed that, at that time, said Carrie B. Pullum had two children, who were represented by guardian ad. litem, and, if these complainants had any interest, it was only contingent on said children dying before their mother, and she then dying without children. The statute provides that a trustee may resign to the register (section 6093, Code 1907), that notice must be given by publication (section 6094, which was done), and that “the register, on the granting of such application, may appoint a trustee, and if necessary to protect the parties interested in the trust property, may require the necessary bond of such trustee” (section 6097). It will thus be seen that the resignation and the appointment of the new trustee constitute one continuous proceeding, and, in this case, the only notice required by statute was given. The next succeeding section of the chapter relates to the case of the death of a trustee, and section 6099 relates to the same and provides only that parties in interest must be notified either by personal notice or by publication, while section 6100 seems to refer to the same, as it refers only to a proceeding “to appoint a trustee,” and not to a proceeding on resignation. However, it confers authority on the register to appoint a guardian ad litem, but does not make it jurisdictional. It results then that the appointment of Pullum as trustee was legal and regular. The conveyance by him (his wife consenting) *457carried the legal title, and the appellee Ivey, being a bona fide purchaser, cannot be affected by the matters set up in the bill.

In the view we take, it is unnecessary to discuss the other • interesting questions suggested in the brief of appellant.

The decree of the court is affirmed.

Affirmed.

Dowdel, G. J., and Anderson and McClellan, JJ., concur.