Honnett v. Williams

• Decision Date: 28 January 1899
• Citation: 49 S.W. 495,66 Ark. 148
• Parties: HONNETT v. WILLIAMS
• Court: Arkansas Supreme Court

49 S.W. 495

66 Ark. 148

HONNETT v. WILLIAMS

Supreme Court of Arkansas

January 28, 1899

Appeal from Jefferson Chancery Court, JAMES F. ROBINSON, Chancellor.

STATEMENT BY THE COURT.

The facts in this case are as follows: One Willoughby Williams Sr., being the owner of land in Jefferson county of this state, conveyed the same to his son, Willoughby Williams Jr., and the wife of his son, Anna H. Williams, by the following deed:

"This deed, made and entered into this, 29th day of May, A. D 1877, by and between Willoughby Williams, Sr., of the county of Davidson, in the state of Tennessee, as party of the first part, and Willoughby Williams, Jr., Anna H. Williams, his wife, of the second part, and Andrew F. Williams, Nannie W Williams, Harry McLemore Williams, and Alex N. Williams, children of the parties of the second part, and any issue from them (the sad parties of the second part) they may hereafter have, parties of the third part, witnesseth, that the said party of the first part, for and in consideration of love and affection to the parties of the third part, and the sum of five dollars to him in hand paid by the said parties of the second part, the receipt of which is hereby acknowledged, does by these presents give, grant, bargain, sell and convey and assign to and with the said parties of the second part the following described real estate lying and being situated in Jefferson county in the state of Arkansas, and known as the southwest quarter of section 3, the northwest quarter of section 10, and that part of the southwest quarter of section 10 north of King's bayou, in township 6 south, of range 7 west, containing four hundred acres, more or less. To have and to hold the same, with all and singular the rights, privileges and appurtenances thereunto belonging or in any wise appertaining, unto the said parties of the second part, their heirs and assigns forever, in trust to and for the sole and separate use, benefit and behoof of Anne F., Nannie W., Harry McLemore, and Alex N. Williams (and any issue they, the parties of the second part, may hereafter have), children of the said parties of the second part, free from debts, demands or liabilities of the said parties of the second part, or their control, further than the use and appropriation of the rents and profits of the said land for the sustenance of themselves and the support, education and maintenance of the children aforesaid, and of any issue they may hereafter have. They, the said parties of the second part, may, however, whenever they may deem it wise to do so, without the intervention of any court, sell and convey in fee simple said real estate, and reinvest the proceeds of said sale for the sole separate use and benefit of said children of the said parties of the second part, and any issue they may hereafter have, free from the debts and liabilities of the said parties of the second part. The said party of the first part hereby warrants and defends the title to said lands to the said parties of the second and of the third part against the lawful claims of all parties whomsoever. In testimony whereof the said party of the first part hereunto affixes his hand and seal this day and year above written.

WILLOUGHBY WILLIAMS."

After the execution of this deed another child, John N. Williams, was born to Willoughby Williams, Jr., and Anna H. Williams, and is a beneficiary under the terms of the trust deed. Willoughby Williams, Jr., the husband of Anna H. Williams, died in 1892. At the time of his death, he and his wife were indebted to appellants, Honnett & Weil, in the sum of about $ 500 for supplies and money furnished them for the use of themselves and family, and for the cultivation of the lands held in trust by them. To secure the payment of this debt, and also to secure means to cultivate said land in 1893, and for their support and maintenance, the appellees, Anna H. Williams, Andrew F. Williams, Henry McLemore Williams, Alexander N. Williams and Nannie W. Williams, on March 24, 1893, executed a promissory note to Honnett & Weil for the sum of $ 500 due November 15, 1894, and also executed a mortgage on the lands mentioned to secure said note and supplies to be advanced. Honnett & Weil made advances of supplies and money during 1893, and afterwards, on 2d of January, 1895, brought this action to foreclose the mortgage, and to recover the sums on the note and account.

The chancery court gave judgment against the appellees for the sum of $ 1,385, the amount due on note and account, but adjudged that the mortgage was void by reason that appellees had no power to charge said land with the debts sued on.

Judgment as to debt and interest affirmed but judgment as to mortgage reversed.

I. Reinberger and Crawford & Hudson, for appellants:

Restraints upon alienation are not countenanced now, and can not avail to give a man an estate free from claims of his creditors. Gray, Restraints on Alienation (2 Ed.), § 4; ib. pp. 105, 119; Const. Ark. (1874), art. 2, § 19; 4 Kent's Comm. 266; 8 Ark. 302; 6 Ark. 109; 125 Mass. 263, Lewin, Trusts, 97, 98; Perry, Trusts, §§ 386, 386a; 2 Story, Eq. § 974, 974a; Underhill, Trusts, 67-73; 1 Dembitz, Land Tit. 103, 165; 57 Pa. 236; 26 S.W. 813; 12 ib. 1035; 24 S.W. 343; Sand. & H. Dig. §§ 696, 3049. There being no express restraint on alienation in the deed, none can be implied. 125 Mass. 356; 71 Mass. 336. The right of the heirs was a vested one. Bouvier's Dict. title "To vest"; Fearne, Rem. 2. There can be no inalienable equitable fee. 57 Pa. 236; 2 Am. & Eng. Dec. Eq. 634. The trustee had power to mortgage the trust estate. 27 Am. & Eng. Enc. Law, 138, note 2; ib. 136; 75 Ga. 130; 68 Ia. 255; 36 N.J.Eq. 169; 52 L. T. N. S. 494; 1 Rawle, 231; 151 Pa.St. 323; 14 W. N. C. (Pa.) 76; 22 Ont. Rep. 560; 160 Pa.St. 95. A future interest in lands can be conveyed, and is subject to the payment of debts. Sand. & H. Dig. § 701-2; 14 Ark. 489; 17 Ark. 674; 125 Mass. 263.

D. H. Rousseau and Austin & Taylor, for appellees.

The owner of property has a right to provide that the rents and profits of his estate shall go to his children, and that the estate shall be not subject to the payment of their debts, if they should be improvident or unfortunate; and, in such a case, it is not necessary that the instrument declare in terms that the property is to be held free from creditors, if such intent is sufficiently manifest. 4 F. 136; 59 F. 923; 135 Pa.St. 585; 8 Bush, 661; 79 Ky. 5. The trustee and the adult beneficiaries had no power to, sell as long as there was a minor within an indefinite interest. Gray, Restraints or Alienation, § 116; 5 W. & S. 323; 36 Pa.St. 338; 2 W. N. C. 533; 133 Pa.St. 342; 46 Pa.St. 392; 59 Pa.St. 393; 67 Pa.St. 473; 49 Pa.St. 213; 80 Pa.St. 348; 2 Rawle, 33; 7 Watts, 547; 4 Allen, 566; 111 Ill. 247; 143 Ill. 301; 66 Md. 436; 30 Vt. 338; 45 Vt. 24; 59 Vt. 530; 20 Mo.App. 616; 96 Mo. 439; 10 Gratt. 336; 11 Gratt. 552; 28 Gratt. 192; 87 Va. 758; 2 Lowell, 575; 91 U.S. 716. The note was given for a past consideration, and is unenforceable. Beach, Mod. Law, Cont. § 160; 21 Ark. 18.

OPINION

RIDDICK, J., (after stating the facts.)

This is an action to foreclose a mortgage. The main question presented for our consideration is whether the mortgagors had power to execute a valid mortgage upon the lands mortgaged. The land in question was owned by Willoughby Williams, Sr., who conveyed it to his son, Willoughby Willams, Jr., and Anna H. Williams, the wife of his son, in trust for their children, "free from the debts or liabilities" of the said Willoughby Williams, Jr., and Anna H. Williams, "or their control, farther than the use and appropriation of the rents and profits of said lands for the sustenance of themselves and the support, education and maintenance of the children aforesaid." Four of the children and their mother, Anna Williams, joined in the execution of the mortgage to appellants. If they owned a vested interest in the land, they could mortgage it; for the general rule is that the beneficial interest of the cestui que trust in land may be sold and conveyed as other interests in property, legal or equitable. Speaking of this question, Mr. Pomeroy says that, "with the exception in reference to married women, the estate of the cestui que trust cannot, by any restrictions annexed to the trust, be rendered inalienable, nor can it be stripped of the other incidental rights of ownership. It is also liable for the debts of the beneficiary. It cannot be so created that, while it is subsisting, and enjoyed by the beneficiary, it shall be absolutely free from such liability. The trust may be so limited that it shall not take effect unless the beneficiary is free from debt, or that his estate shall cease upon his becoming insolvent, or upon a judgment being recovered against him, and shall thereupon vest in another person; but the cestui que trust cannot hold and enjoy his interest entirely free from the claims of creditors." 2 Pomeroy's Equity, § 989; Mebane v. Mebane, 39 N.C. 131, 4 Ired. Eq. 131; S. C. 44 Am. Dec. 102; Heath v. Bishop, 25 S.C. Eq. 46, 4 Rich. Eq. 46; S. C. 55 Am. Dec. 654; Brandon v. Robinson, 18 Ves. 429.

While the rule, as thus announced by the learned author, is the settled law of England, and is followed in some of our states, it has been...