Foster v. Campbell

• Decision Date: 31 January 1927
• Docket Number: 26149
• Citation: 145 Miss. 502,113 So. 550
• Court: Mississippi Supreme Court
• Parties: FOSTER et al. v. CAMPBELL et al. [*]

113 So. 550

145 Miss. 502

FOSTER et al. v. CAMPBELL et al. ^[*]

No. 26149

Supreme Court of Mississippi

January 31, 1927

Division B

Suggestion of Error Overruled March 14, 1927.

APPEAL from chancery court of Coahoma county.

HON. C L. LOMAX, Chancellor.

Suit by Lena Logwood Foster and others against Mrs. Carrie W Campbell and others. From an adverse decree, plaintiffs appeal. Reversed and remanded.

Decree reversed, and cause remanded.

J. J Adams and Rufus Creekmore, for appellants.

The appellants herein are uneducated, ignorant negroes, four of whom were very small children, one of them an infant, at the time of their father's death, whose claims, interest, legal and equitable rights as well as their mother's in said land are to be adjudicated by this court. From the conduct of appellees one might think that appellants have no standing or rights in the courts of our state, but that is not the law of the state of Mississippi. They are entitled to the same cool, deliberate and dispassionate consideration from the courts of our state in the adjudication of their difficulties as any other citizen of the state. U. S. Constitution, Amendments, article 14; Mississippi, Constitution, Bill of Rights, section 8.

Appellees have brought about a condition not provided for in said contract or deed of trust. The appointment of a new trustee under the power in said deed of trust cannot properly be made as this court has said that a substituted trustee cannot be appointed unless the terms of the power distinctly authorized it in the particular event which may have occurred. Guin v. Pickett, 42 Miss. 77; Hill on Trustees (4 Ed.); Clark v. Wilson, 53 Miss. 119; McNeal v. Lee, 79 Miss. 459, 30 So. 821; Jones v. Salmon, 91 So. 199.

There is no provision in this deed of trust by stipulation or implication whereby the cestui que trust could by private sale, sell, assign, convey or deliver by warranty deed all of his right, title, and interest in and to said note and deed of trust and two years and a half later appoint a substituted trustee. This class of cases is looked upon with a suspicious eye and always strictly construed by the law. Guin v. Pickett, 42 Miss. 77; Clark v. Wilson, 53 Miss. 119; Jones v. Salmon, 91 So. 199; Cox v. American Freehold & Land Mort. Co., 40 So. 741.

While a power of sale in a deed of trust is valid and a sale thereunder may confer a good title, the powers of the person foreclosing thereunder are limited and defined by the instrument under which he acts, and he has only such authority as is expressly conferred upon him by said instrument and that power is strictly construed against him. 19 R. C. L., page 592, sections 4-6-07; citations, Scotish Am. Mort. Co. v. Butler, 99 Miss. 56, 54 So. 666; Jones v. Salmon, 91 So. 199; Guin v. Pickett, 42 Miss. 77.

Appellants recognize the general doctrine of delegated powers, and the rule seems to be that the power delegated to appoint trustees is a personal power or trust, which cannot for that reason be delegated. We understand the rule applies when the donee is a natural person, but has no application when the donee of the power is a corporation as in the case at bar; and furthermore, the mortgagor and mortgagee did away with this rule in this case when they appointed the acting sheriff of Coahoma county successor in trust. Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285; Virginia Trust Co. v. Buford et al., 86 So. 356.

The pretended appointment of the new trustee, W. M. Lee, was void and of no effect. The appointment could have been only on the grounds of the cestui que trust having some power; and yet how can the power be divided or separated from the interest in the property, if it can be? What is to prevent the cestui que trust after he has assigned all of his rights, title and interest from selling the property again without regard to the assignee? Where is the restriction? 19 R. C. L., page 353, section 124 and citations; Niles v. Ransford, 51 Am. Dec. .

It is well settled in Mississippi that a sale under a deed of trust by a substituted trustee under a void appointment is a void sale. Watson v. Perkins, 40 So. 643; Hartly v. O'Bryan, 13 So. 241; Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285.

Also the rule seems to be well settled that if there are any irregularities whatever in the mode of exercising the power, the appointment will be void, and we submit that the mode exercised in the appointment of said W. M. Lee, the new trustee in said deed of trust in the case at bar was manifestly irregular and void. Clark v. Wilson, 53 Miss. 119; Hill on Trustees, 281.

This is a case in which confidential or fiduciary relations existed between appellants and W. S. Campbell. If a wrong arises, the same remedy exists against the wrongdoer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust.

Campbell entered into an agreement with appellants that the law and equity should and will enforce; and the purchase of said land and home by said Campbell, deceased, in his own name is a purchase only as trustee of appellants. 25 C. J. pages 1118-20, note 66 in full; 2 Pomeroy Equity Jurisprudence (3 Ed.), sections 956 and 958; Dick v. Alvers, 134 A. S. R. 369 and note.

It is a well-settled rule in equity that any one acting in a fiduciary or confidential relation, shall not be permitted to make use of that relation to benefit his own personal interest, except with the full knowledge and consent of the other person. 25 C. J., pages 1118-20 and notes; Comfort v. Winter, 66 So. 536; Hebron v. Kelley, 21 So. 799; Wilson v. Hoffman, 61 So. 699; Soggins v. Heard, 31 Miss. 426.

We submit that the relations between appellant and said Campbell are such as to show that they do not deal on terms of equality but that either, on the one side, from superior knowledge of the matter derived from a confidential or fiduciary relation, or from overmastering influence; or on the other from weakness, dependence or trust reposed. The sale of said land should be set aside and held for naught and an accounting ordered. 25 C. J., page 112, note 77; Comfort v. Winters, 66 So. 536; Soggins v. Heard, 31 Miss. 426; Hensen v. Cooksey, 127 A. S. R. 345.

Fraud vitiates all transactions and may be predicated on promises designed to entrap the unwary and never entered to be kept, as well as misstatements of existing facts. Paten-Worsham Drug Co. v. Planters Mercantile Co., 38 So. 209; Bunch v. Shanon, 46 Miss. 525; Soggins v. Heard, 31 Miss. 426.

The statute law of Mississippi, section 2458, Hemingway's Code (section 3094, Code of 1906) deals with adverse possession. The confidential and fiduciary relation existing between said Campbell and appellants would estop him from setting up such a claim against appellant, even though he had been mortgagee. 25 C. J., pages 1118-20, and notes; note 77, page 1120.

We understand the rule in adverse possession to be that in order for an adverse claim to ripen into a perfect title by virtue of the statute of limitations, it is primarily essential that the possession relied on be actual; and we submit that said W. S. Campbell, deceased, was never in actual possession of said land at all. 2 C. J., page 51; Davis v. Bomar, 55 Miss. 671; Magee v. Magee, 37 Miss. 134.

Appellants here repeat that said W. S. Campbell, deceased, never did have possession of said land, never did notify appellants that he claimed ownership of said land, much less demand of them the possession of said land and if he ever charged appellants rent on said land he did so without the knowledge or consent of appellants, "and if he did so, it would not apply to the four minor appellants." 2 C. J., pages 75-761, notes and citations; Alexander v. Polk, 39 Miss. 737 and citations; Magee v. Magee, 37 Miss. 138; McCaughn v. Young, 37 So. 839.

An exclusive possession is a necessary element of title by adverse possession and it must be exclusive as well as hostile. A scrambling possession will at no time suffice. 2 C. J., pages 80 and 118; Tegarden v. Carpenter, 36 Miss. 404.

This cause was filed in a court of equity and the rules of equity should be applied.

Vincent Brocato and Cutrer & Smith, for appellees.

The complainants here rely upon two theories for the granting of the relief prayed for in the bill of complaint: (1) That the appointment of a trustee by the Middlesex Banking Company was void and of no effect, and that all acts done and contemplated by the alleged substituted trustee, Willis M. Lee, were consequently void and of no effect. (2) That the acts of W. S. Campbell, deceased, with reference to the purchase of the lands here in question at the foreclosure sale constituted such fraud as to create a resulting trust for and on behalf of the complainants.

I. With reference to the first contention, we have no fault to find with the authorities cited in the brief. We are confident that the terms of the instrument, under which the substituted trustees purported to act were strictly complied with.

It is admitted that the trustee occupies a position of personal trust, and that the doctrine of delegatus non est delegara is a general and recognized principle of law. Under the doctrine as stated in McNeal v. Lee, 79 Miss. 459, the power to appoint a substituted trustee is vested solely and entirely in the person designated in the instrument by which such power may be exercised. It is a fundamental and undisputed principle of law, and it is a principle of law upon which counsel for appellants seem to rely strongly, that the instrument under and by which such substituted trustee acts must be construed strictly and that any powers or rights not delegated in the instrument cannot be exercised. McNeal v. Lee, 79 Miss. 459; Allen v....