39 Mo. 13 | Mo. | 1866
delivered the opinion of the court.
A brief statement of the facts will develop the point which is regarded as the most material one presented by the record. The other points will not be considered, as this will be sufficient upon which to rest the decision of the case.
This was an action of ejectment, commenced in the St. Louis Land Court, , against the widow and keirs at law of James M. Hughes, deceased. The following state of facts shows the ground upon which the plaintiff’s right of recovery is based.
On the.2d day of September, 1856, James ]£. Hughes and wife conveyed to George B. Sanderson and Henry W. Williams/certain real estate in the city of St. Lcuis in trust to seciure the payment of a note of that date fir $10,000, due ffnd^payable five years thereafter; and also ter interest notes, each'for the sum of $500, payable semi-anmally from said date. James M. Hughes died in the month of February, 1861, and Sanderson, one of the trustees, ii the month of May thereafter. On the 25th day of Novenber following, Williams, the surviving trustee, executed a died to the plaintiff Whittelsey, reciting the death of his co-tustee, and also the fact that he intended “ to leave St. Loris to be absent some time,” and that he did thei’eby bargsin; sell, convey and quit-claim unto said Whittelsey the premises in said
The said Paul was introduced as a witness bn the part of the defendants, and testified as follows: “ I was not at the sale, and I did not bid for or buy the land in question. Mr. Whittelsey requested me to execute a deed to him for the land he conveyed to me, and I did it to accommodate him. This request was about the time, or perhaps a day or two before, the deeds were signed. He made this deed to me and I made this other deed to him, and we acknowledged them before Mr. Tillson. No money passed between us; it was done for his convenience.”
Passing by the questions raised as to the regularity of the sale, the right of the defendants to redeem the properly, as well as the right of the trustee to purchase at the sale, "we come directly to consider the power of the trustee Williams' to substitute another to the powers conferred upon him by the conveyance from Hughes and wife. In the case of McKnight v. Wimer, 38 Mo. 132, deeds of trust as used in this
It is insisted by the plaintiff in error that Wiliams could legally convey the estate and transfer the power which had been; conferred upon him by the deed of trust. The haben-duifi was “ to said trustees and the survivor oftliem, and to the heirs, executors, administrators and assign; of said survivor, in trust,” &c. Much stress is laid upn the word assigns, and the case of Titby v. Wolstenholme, 7 Beav. 425, is jited as authority to show that a devise madi by the surviving trustee of a trust estate was valid, no eipress power of appointing new trustees being given by the will. From this decision the argument is made in this case that the power to convey by deed, and to make an appointment of a new
No error being found in the record, the judgment of the Land Court will be affirmed.