Stevens v. Smith

124 Ky. 780 | Ky. Ct. App. | 1907

Opinion op the Court bt

Judge Hobson—

Reversing.

On November 13, 1882, tbe brothers and sisters of George W. Smith conveyed to him a tract of land in Payette county, in consideration of a settlement among tbe heirs of Solomon Smith and of $3,000 to be paid without interest by Geo. W. Smith to W. B. Smith, one of the grantors. The deed contains, among other things, these words: ‘ ‘ This deed is made to said George W. Smith by the parties of the first part with the understanding and agreement thereof, the said George W. Smith has the right to sell the land provided the money is reinvested in other lands to be conveyed to said George W. Smith during his natural life and after his death to his children, and the land hereby conveyed to said George W. Smith is not to be liable in any way or manner for any debt he may create except the three thousand ($3,000.00) dollars owing to W. B. Smith aforesaid and for the payment of which a lien is reserved. ’ ’ On December 2, 1889, Geo. W. Smith and wife conveyed the tract of land to W. B. Smith, and W. B. Smith and wife on March 3, 1891, conveyed it to "W. F. and J. O. Mc-Allister, in consideration of $10,122.50; the deed to W. B. Smith having been executed simply for the purpose of selling the land, and without any consideration. Out of the purchase money received from the McAllisters, W. B. Smith was paid his debt of $3,000, but the remainder of the purchase money was not reinvested in other lands conveyed to Geo. W. Smith during his natural life and after his death to his children. On March 1, 1893, McAllister sold and conveyed the land to J. Valentine Stevens, and on October 8, 1901, this action was brought by the children of Geo. W. Smith against Stevens to recover the land from him on the ground that he took no title, because Geo. W. Smith had .under the deed only the power to sell the land, provided the money was reinvested in other lands, to be conveyed as therein set out. The circuit court adjudged them the relief sought, and Stevens appeals.

Under the rules of equity it seems that it would be held that under the deed the purchaser would be required to see to the application of the purchase money, and that as Geo. W. Smith had the right to sell the land, provided the money was reinvested in other lands, to be conveyed to him during his life and after his death to Ms children, he was without authority to make the deed, except upon the conditions named. But the common law rule has been changed in this State by section 4846, Ky. Stats., 1903: "Where lands are devised to be sold on special or general trust, or are conveyed or devised to trustees or executors in trust to be sold generally or for any specific purpose, the purchaser shall not be bound to look to the application of the purchase money, unless so expressly required by the" conveyance or devise. ’ ’

In Johnson v. Dumeyer, 66 S. W. 1025, 23 Ky. Law Rep., 2243, the land was devised to a daughter of the testator, and she was given power to sell the land, but the proceeds of the sale were to-be invested in other real estate and held' for certain purposes. It was held that under the statute above quoted the purchaser was not bound to look to the application of the purchase money; he not being required to do so by the will. In Miller v. Stagner, 76 S. W. 160, 25 Ky. Law Rep. 650, land was devised to a son for life, and he was authorized to sell it upon condition that the proceeds, were invested in other good property to be held under certain limitations. The court, after referring to the. case of Grotemkemper v. Bryson, 79 Ky. 353, 2 Ky. Law Rep. 335, said: “The devisee', Malcolm M. Miller, although given only a life estate by the will, is authorized by it to sell and convey the property. In selling and conveying he acts as trustee under the will, and holds the proceeds received for the property also as trustee. He is authorized to sell and convey upon the express condition that the proceeds shall be invested in other good property, to be held under the same limitation and condition. This condition is imposed upon the devisee who is charged with the trust of reinvesting the proceeds. The land is therefore devised to a trustee in trust, to be sold for a specific purpose according to the terms of the statute, and the purchaser is not bound to look to the application of the purchase money, there being nothing in the devise expressly requiring Mm to do so.” In Robinson v. Pence, 76 S. W., 368, 25 Ky. Law Rep. 733, the property was devised to the son for life, with remainder .to his children. He was authorized to sell the land and reinvest the proceeds in other real estate subject to the same trusts and conditions. The purchaser was held not required to see to the investment of the proceeds of the sale.

These opinions control the case before us. It was manifestly the purpose of the statute to change the common-law rule and to render titles more safe. It is in line with the modern tendency favoring the sale of land and the vesting of absolute titles. The language of the statute is that the purchaser shall not be bound to look to the application of the purchase money unless so expressly required by the conveyance or devise. This literally means that the purchaser is not bound to look to the application of the purchase money unless he is expressly required to do so by the conveyance, or devise. Since the statute was enacted, in order to charge the purchaser with the application of the purchase money, it must be expressly provided in the deed or devise that he is to see to the investment of .the purchase money, or there must, be other language therein expressly imposing this duty upon him. See Magowan v. McCormick, 10 S. W., 632, 10 Ky. Law Rep., 753. In the ease at bar there is nothing in the deed requiring the purchaser to look to the application of the purchase money. The duty of reinvesting the purchase money devolved upon Geo. W. Smith, and the purchaser was not affected under the statute by'Smith’s failure to reinvest the proceeds of the sale as directed by the deed.

Judgment reversed, and the cause remanded for a judgment as herein indicated'.