Gaither v. Williams

• Decision Date: 01 March 1882
• Citation: Gaither v. Williams, 57 Md. 625 (Md. 1882)
• Parties: THOMAS H. GAITHER v. HENRY J. WILLIAMS, and others.
• Court: Maryland Court of Appeals

57 Md. 625

THOMAS H. GAITHER v. HENRY J. WILLIAMS, and others.

Court of Appeals of Maryland

March 1, 1882

APPEAL from the Circuit Court for Anne Arundel County, in Equity.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., MILLER, ROBINSON IRVING and RITCHIE, J.

John Wirt Randall, and J. J. Donaldson, for the appellant.

The mortgages operated as a complete revocation of the trusts in the deed of October 16th, 1855, and the appellant, as purchaser at the mortgage sale, took a full fee simple title.

This power could be executed by the deed of Williams and wife without the joinder of the trustee. The words of the power are: "Full power of revocation, as to the whole or any part of said property, by deed, to said Henry and Priscilla, being hereby expressly reserved." The use of the word "reserved," shows beyond a doubt, that this is the proper construction, as well as the fact that there had been already a provision for the uniting of the trustee with them in conveyances, "even to the entire revocation of the trusts herein and hereby created." It is as if the power had been written "full power of revocation by deed, as to the whole or any part of said property, being hereby expressly reserved to said Henry and Priscilla."

This Court has held that powers are to be liberally construed according to the intention of the party and to advance rights. Pearce vs. Van Lear, 5 Md., 85.

The mortgages were a valid execution by deed of the power.

( a.) They embrace the subject of the power and this makes a deed as valid an execution of a power, as if the power were in terms referred to. Smith vs Adkins, 14 L. R. Eq., 402; Carroll's Lessee vs. Llewellin, 1 H. & McH., 162; Morey vs. Michael, 18 Md., 227; Coryell vs. Dunton, 7 Barr., 530; Hunloke vs. Gill, 1 Russ. & M., 515; Society vs. Clendenen, 44 Md., 435; 4 Kent Comm., [334;] Morgan vs. Insman, 1 Taunt., 289; Cooke vs. Farrand, 2 Marsh., 421; Carver vs. Richards, 6 Jur., N. S., 410; Sugden on Powers, ch. 6, sec. 7, 32-3-35-6, 57; 1 Story's Eq. J., 174 a.

( b.) The only means of disposition the mortgagors had of the lands, was under the power, the conveyances could only go into effect as executions of the power, and therefore they will be held valid executions of it. Sugden Powers, ch. 6, sec. 8, 2-10, 11, 12; 4 Cr. Dig., 197, 200, sec. 36; Bradish vs. Gibbs, 3 Johns. Ch., 551; Benesch vs. Clark, 49 Md., 497, 507; Standon vs. Standon, 2 Vesey, 589; S. C., 6 Bro. P. C., 193; Hougham vs.

Sandys, 2 Sim., 95; Maples vs. Brown, Ibid, 327, and cases already cited. Goodman vs. Stockett, 47 Md., 54.

( c.) The uses limited in the mortgages (powers of sale, disposition of balance, &c.,) are utterly inconsistent with those limited in the deed of 1855, and can only take effect if the mortgages are taken as a complete revocation of the former uses.

( d.) That they are mortgages and not absolute deeds, makes no difference. A mortgage is a valid and complete execution of a power of revocation by deed, if the equity of redemption be reserved to the grantor, and not merely a revocation pro tanto. Sugden on Powers, sec. 6, 20-26; Lancaster vs. Dolan, 1 Rawle, 231, and cases already cited.

Even of a power to sell and convey a mortgage is a good execution. Price vs. Bigham's Ex'rs, 7 H. & J., 296; Tiernan vs. Poor, 1 G. & J., 216; Brundige vs. Poor, 2 G. & J., 1; Berrett vs. Oliver, 7 G. & J., 191; Helms vs. Franciscus, 2 Bl., 54.

If it be held that the power has been defectively executed by non-joinder of Jarrett or otherwise, a Court of Chancery will supply the defect in aid of the appellant, who gave a valuable consideration. 4 Cr. Dig., Tit. 32, ch. 18, sec. 17, and cases there cited. Sugden on Powers, ch. 10, sec. 3, and cases there cited.

But even if there be an outstanding, legal estate in Jarrett, it is a mere dry estate, and it is his duty to convey it to the appellant. Hill on Trustees, 278, 279, ad fin.; Goodson vs. Ellison, 3 Russ., 283; Holford vs. Phipps, 3 Beav., 434; England vs. Slade, 4 T. R., 682; Angier vs. Stannard, 3 M. & K., 571.

So far does the principle go, that such a conveyance will be presumed after a lapse of time, even in a Court of law. Hill on Trustees, 253, 254; Noel vs. Bewley, 3 Sim., 103; Matthews vs. Ward, 10 G. & J., 443.

J. Q. A. Jones, and F. H. Stockett, for the appellees.

The deed of trust conveys and vests in the trustee, Jarrett, all the legal estate of the grantors. Doe vs. Martin, 4 Durn. & East, 39-64; Matthews and Ward, 10 Gill & John., 449; Ware vs. Richardson, 3 Md., 549; Leonard's Lessee vs. Diamond, 31 Md., 541; Brown and Wife vs. Renshaw, 57 Md., 67.

If the legal estate in said lands was vested by the deed of trust of the 16th of October, 1855, then the only interest Williams and wife had was an equitable life estate or trust in chancery, with the right of appointment by Mrs. Williams, by a testamentary paper, to such children of her and her then husband as she should "name, limit and appoint" in such paper; and if she, Mrs. W., should die without such appointment, and Williams, the husband, survive, then to such children as he, by a like testamentary writing, should "name, limit and appoint;" and upon their failure so to appoint, to the then children equally. Doe vs. Martin, 4 Durn. & East; Green vs. Green, 23 Wallace, 487; Leonard's Lessee vs. Diamond, 31 Md., 541; 2 Crabb's Law of Real Property, 508; 3 Md., 458; Whetstone vs. St. Bury's, 2 P. Wms., 146.

Williams and wife had then no power to bind, by any writing they should execute, any other interest in that property than their equitable life estate. That estate they mortgaged to Glenn and Turnbull, and by so doing conveyed all the estate they could control, even if they could do this. Whetstone vs. St. Bury's, 2 P. Wms., 146.

The clause of revocation in said deed of trust reserved by Williams and wife, to be exercised by them and the trustee upon their request in writing only, does not authorize and empower them alone to destroy the trusts of the deed. Has their mortgaging the property effected it?

The legal estate, whether a "dry" or active one, is in Jarrett, the trustee. Hill on Trustees, 230; Ware vs. Richardson, 3 Md., 449--that in Mrs. Williams, and her husband, if he should survive her, is an equitable life estate. Hill on Trustees, 230--and the remainder is in the trustee for the children of Mrs. and Mr. Williams, a vested remainder in fee, subject to be divested upon the naming, limiting and appointing by Mrs. Williams by a writing like unto a will, executed in the presence of at least two witnesses, or by H. J. Williams, upon her default, if he be the survivor. Sugden on Powers, (1 st Amer. Ed.,) 150, 151; Osbrey vs. Bury, 1 Ball & Beatty, 53; Cunningham vs. Moody, 1 Vesey, 174; Doe vs. Martin, 4 Durn. & East, 65, 67, 69, 70.

No valid conveyance of that property, passing all the varied interests therein created by said deed of trust, can be executed without the uniting therein of Mr. and Mrs. Williams, the trustee Jarrett, and the children of Mr. and Mrs. W., unless a conveyance thereof be decreed by a Court of equity upon competent proof and under such circumstances as the Court should deem proper and wise for the benefit of all interested therein.

The mortgages referred to were executed by Mr. and Mrs. Williams only, in the presence of one witness only and are utterly null and void, no authority or power to mortgage being delegated by said deed of trust, or reserved by the grantors for such purpose. Green vs. Green, 23 Wallace, 487; Huntt & Ives vs. Townsend, 31 Md., 338; Dolan & Foy vs. Mayor and City Council of Baltimore, 4 Gill, 405, 406.

For the sake of the argument, assume that the trust deed to Jarrett is revocable. It is so only upon the conditions therein named, and for the purposes therein mentioned. To effect it and justify it, several equitable circumstances must exist, viz., Mr. and Mrs. Williams must be inclined to revoke, and must request it of the trustee in writing; then the trustee having a discretion

as to the revocation, as he has as to Mr. and Mrs. Williams' occupancy of the estate, must carefully and discreetly exercise, and use it only to promote the general welfare of those whose rights and interests are entrusted to him. He is an active trustee, invested with more than a dry legal title. Wormley vs. Wormley, 8 Wheaton, 421; 5 Peter's Con. Rep., 479 and 481.

Again, the revocation clause in that deed must be construed altogether as a whole, not in separate parts; and taken together, it means that the trustee can unite in a revocation only for the purpose of selling the property in part or wholly, that the proceeds of sale may be re-invested.

Examine the power of revocation reserved by the grantors, and see if the act of sale of the property and that of re-investment of the proceeds can be separated. Certainly not. It is conditional only. Doe vs. Martin, 4 Durn. & East, 66; Wormley vs. Wormley, 5 Peters' Con. Rep., 481.

In this case there is no pretence that Williams and wife intended to invest the money borrowed upon their mortgages, upon " such or further trusts," as provided for and limited by said deed, so that by implication even a Court of equity cannot aid the appellant to secure himself, as was said in Tyson vs. Latrobe, 42 Md., 339.

In the deed of trust, words of inheritance are found, showing conclusively that the trust created by the deed is a continuing one; investing the legal estate in Jarrett "to him, and his heirs." Thus no acts of Williams and wife, or Jarrett uniting with them, or of him alone, can defeat the intention of that deed, or divert that property from the children of Williams and wife. Leonard's Lessee vs. Diamond, 31 Md., 541; Doe vs....