79 Miss. 175 | Miss. | 1901
delivered the opinion of the court.
In sales made by executors, administrators and all other trustees, uberrima fides is the inflexible rule of law. In making the sale the trustee ‘£ cannot bring others into his confidence, by reason whereof a private sale is made to them on the secret understanding that he is to take an interest or benefit. ’ ’ McGowan v. McGowan, 48 Miss., 553. This doctrine is apparently universal, and it is essential, in order to preserve integrity and good faith in the immense mass of business dealings among men, where confidence is reposed. In this view, there can be and is no difference or distinction drawn by the law between actual and constructive fraud. The law condemns the thing regardless of the motive. There can be, in the nature of things, no condonation of it,' no plausible explana
The purchaser in this case cannot, nor can the appellee, his devisee, who was his agent at the purchase,- and familiar with the agreement and private understanding, avail of the two year’s statute of limitations, applicable where “the sale is made in good faith and the purchase money paid, ’ ’ as provided by code 1892, §2760, because here there was not “good faith ’ ’ in the purview of the law, and the purchase money was not paid in the same purview. ■ If $925 of the individual debt of the executor may be deducted from $3,468, cash bid, why may not $3,000 be so deducted? In matters of such general importance the statute cannot be evaded. There must be first good faith, and then the purchase money must be paid — every dollar of it, unless, perhaps, some trivial sum omitted by mistake or miscalculation.
The executor’s sale of the 578 acres was also void because there was no bond for the faithful application of the proceeds of the sale of the land. Code 1880, § 2045; code 1892, § 1905, and authorities cited in the foot notes of both. The omission
We proceed now to inquire into the validity of the sale of the remainder of the 1,174J acres of land made by Mr. Paine,
The substitutionary appointment here was not under seal. Strictissimi is the rule in the execution of powers by a trustee under conveyance to him in trust. A grantor in such an instrument may clog its execution with any and all difficulties and prerequisites to sale which his imagination may conjure up, and they all become vitally essential to a valid sale. ‘ ‘ There must be a strict adherence, not only to the substance of the power, but also to all the formalities required in its execution by the instrument. . . . If it is to be by deed, nothing but a deed will execute the power. . . . So, if the deed is to be sealed. . . . The general rule is strictly adhered to, that powers can be executed only in the mode and at the time and upon the conditions prescribed in the instrument creating the power or trust.” Perry on Trusts, sec. 511 (b). In reference to the appointment of substituted trustees, Mr. Perry says:
The sale was clearly void for want of a seal to the appointment of a substituted trustee. The case of Mo McCarley v. Braid, 58 Miss., 483, has no adverse relevancy to this. Here the complaint is that the parties did not comply with the solemn contract in making the appointment in the execution of the power. There cannot be, in the nature of things, any equitable estoppel of complainants in the case at bar. Sharpley, the grantor in the trust instrument, would not himself have been estopped. McPherson v. Reese, 58 Miss., 750. Mr. Sharp-ley’s answer to the suggestion of estoppel would be that: “The instrument between us was a contract. We contracted at arm’s length, and I stipulated expressly for seal to any appointment, as I had a perfect right to do, and you accepted the security with that condition, and you now claim under the contract, with a violation of that condition.” Suppose the contract had stipulated that the appointment should be made with the picture or drawing of a horse opposite the name, would any court hold that this might be dispensed with in a sale in pais ? There is no restriction on the power to contract, where no public policy is violated. A grantor in a trus.t deed may hamper sales by any conditions he chooses, however tech
The sale being void, for the reasons given, Mr. Plant has no title, and the title is in complainants. We are strongly inclined to think that, by the proper application of payments, the mortgage debt was fully paid before the sale, and so it was void for this. This should be ascertained exactly, by a commissioner appointed for that express purpose. The lands are not chargeable for debts contracted after Mr. Sharpley’s death. The proceeds of the sale of the 578 acres released from the trust by Scruggs must be held to have been appropriated, as the decree of sale required, to the mortgage debt. Mr. Scruggs’ dealings with the executor and the estate are such as to make it certain that he is entitled to no consideration on the score of ignorance or the illegal character of the business transactions of the \executor with him. On the coming in of the itemized report, if there be anything due on the mortgage, it shall be, with ten per centum interest, a lien in favor of Plant on this 596£ acres, and the same proceedings had as in the case of the 578 acres. Whether or not any sum be due on the mortgage, Plant shall have a-lien for taxes paid by him, with six per centum interest per annum; and he shall be required to account for reasonable rents, as in the other case, against which he may offset improvements, but be allowed nothing for them in excess of rents.
Reversed and remanded.