Taylor v. Dickinson

15 Iowa 483 | Iowa | 1863

Wright, Cb. J.

One ground for tbe injunction was that complainants bad not received credit for $462 paid upon tbe notes secured by tbe trust deed. Tbe respondent (Dickinson) says that this was not received as payment, but in consideration that be would, for a certain time, forbear to sell tbe property, which bad long since elapsed. He then avers that to avoid litigation and remove every pretext of complainant to relief on account thereof, be bad credited said amount upon said notes as of tbe date of said payment, as be is ready to show by exhibiting tbe same. Thus far, therefore, there was no occasion for the continuance of tbe injunction, and there was no error in dissolving the same.

II. The deed of trust conveys tbe property to Hager and Ives, and contains this provision: “If said notes, or any of them, be not paid according to their tenor, we hereby authorize said Levi Hager and E. H. Ives, or either of them, to sell said real estate, or any part thereof, at public sale, to the highest bidder for cash, in said city, first giving ten days’ notice of the time, terms and place of such sale, and of the property to be sold, in some newspaper published in said city, to execute a deed therefor to the purchaser,” &c. Neither of the trustees ever accepted the trust, in terms. Ives left the State, and Hager was proceeding, in his own name, to advertise and sell the property. It is objected that the deed conveyed no such power; that a sale could only be made by the trustees jointly.

The rule is that where the debtor makes no different provision, all the trustees must join in the execution of the trust, unless, of course, one or more of them has renounced the same, or been discharged. When the author of the trust, however, as in this instance, gives the power to either of them, it is competent for one of them to proceed with its execution, and especially so where the other has removed permanently beyond the jurisdiction of the State and its courts. It was competent for the parties to make their own contract in this respect, and by it they should be bound.

III. It is insisted, in the third place, that the cause should have been continued on complainant’s motion. The bill was filed July 16, 1862; Dickinson answered January 26, and Hager May 6, 1863. May 8, respondents filed their motion to dissolve the injunction, and on the same day the dissolution was ordered. The record shows that when this motion was called up, complainants “claimed a continuance,” which was refused. Upon what ground it was claimed does not appear. We know of no rule entitling them to it, as a matter of course, and in the absence of some cause shown, we cannot say the Court erred in refusing the application. It was the right of respondents to file their motion to dissolve, either before or after answering, and to have the same disposed of as soon as practicable thereafter, unless, for good cause, complainants obtained further time.

IV". "What is said in the bill about the insolvency of Hager, about a change in the estate or property, the necessity of subdividing the same in the sale, the prejudice or bias of the trustee, and other matters of an equitable character, is substantially, plainly and fully denied in the answers, and the Court could, therefore, as to such matter, properly sustain the motion to dissolve. Stevens et ux. v. Myers et al., 11 Iowa, 183 ; Schricker v. Field et al., 9 Id., 366.

Affirmed.