Loveland v. Clark

• Decision Date: 23 April 1888
• Citation: 18 P. 544,11 Colo. 265
• Parties: LOVELAND et al. v. CLARK et al.
• Court: Colorado Supreme Court

18 P. 544

11 Colo. 265

LOVELAND et al. v. CLARK et al.

Supreme Court of Colorado

April 23, 1888

Appeal from district court, Arapahoe county.

This case comes to the supreme court on appeal from the judgment of the district court of Arapahoe county. The following is a brief statement of the facts upon which this suit was brought, and is now pending: On or about the 1st day of May 1884, Rufus Clark sold and conveyed, by warranty deed, to W A. H. Loveland and T. C. Henry certain lands lying in the county of Arapahoe and state of Colorado. The consideration to be paid for said lands was $70,000. Of this sum $10,000 was paid in cash. The balance of the purchase money, being $60,000, was to be paid as follows: $1,999.98, October 20 1884; $24,259.58, May 1, 1885; $17,463.12, May 1, 1886; and the remaining $17,463.12, May 1, 1887. This balance was secured by a deed of trust from Loveland and Henry to Clark dated the same day as the warranty deed from Clark to Loveland and Henry, to-wit, the 1st day of May, 1884. This deed of trust, executed to secure the balance of said purchase money, conveyed the same lands as were conveyed by the said warranty deed. John R. Hanna and Charles B. Kountz were named trustees in the deed of trust. Among other things, it is stated in said deed of trust 'that whereas, T. C. Henry and W. A. H. Loveland have executed their four promissory notes, bearing even date herewith, payable to the order of Rufus Clark, on or before October 20, 1884, May 1, 1885, May 1, 1886, and May 1, 1887, after the date thereof, respectively, for the aggregate sum of $61,185.80, with interest thereon from date at ten per cent. per annum until paid, said notes being of the sums of $1,999.98, $24,259.58, $17,463.12, and $17,463.12, respectively.' And it is provided in said deed of trust as follows: 'That in case of default in any of said payments of principal and interest, or a breach of any of the covenants or agreements herein, then and in that case the whole of said principal sum hereby secured, and the interest to the time of sale, according to the tenor and effect of said indebtedness, shall and may at once become due and payable. anything in the said notes to the contrary notwithstanding, and the said premises to be sold in like manner and with the same effect as if the said indebtedness had matured.' On June 29, 1886, the trustees in said deed of trust named, and at the request of Rufus Clark, the cestui que trust, proceeded to advertise for sale the lands in the deed of trust mentioned; stating in their advertisement that said property was so advertised for sale 'on account of default in the payment of the two notes first above described, and because all said notes, with the interest thereon, are unpaid, except $135 applied as principal, the sum of $844.51 applied as interest, on said notes.' On the 3d day of August, 1886, all of the said lands were sold at the trustee's sale, under and by virtue of the aforesaid advertisement. At this sale, Rufus Clark, the cestui que trust, became the purchaser, and on the same day, August 3, 1886, John R. Hanna, one of the trustees, executed a trustee's deed to him. This trustee's deed was duly filed for record and recorded in the recorder's office of Arapahoe county, August 4, 1887. Afterwards the said W. A. H. Loveland and T. C. Henry conveyed all their rights, titles, and interest to and in the said lands, to other parties, and through these other parties the present plaintiffs acquired their title. It will be seen that, before the commencement of this suit, the plaintiffs tendered to Rufus Clark all the money due under the deed of trust, with interest and all taxes accrued or paid on said lands, and demanded of said Clark a deed for the said lands, and that the said Clark refused to accept said money or make said deed. This suit was commenced in the district court of Arapahoe county on the 12th of May, 1887. The relief prayed for in said suit by the plaintiff's complaint is that the trustee's deed made by John R. Hanna, as trustee, to the defendant Rufus Clark, August 4, 1886, and all subsequent conveyances by which the defendant, or any of them, pretend to claim or have acquired title to any of the lands sold under said deed of trust, may be canceled and held for naught; that the defendant Rufus Clark may be required, upon the payment to him of the balance due on the purchase price of said lands, and interest on said balance, and any taxes that he may have paid on said lands, which the purchasers were required to pay by the terms of the purchase, to execute a good conveyance to these plaintiffs for all the lands included in the deed of trust herein mentioned; and for such other and further relief, the premises considered, as may be meet, equitable, and just.

Markham & Dillon, Teller & Orahood, J. P. Brockway and E. A. Clark, for appellants.

Wolcott & Vaile, D. V. Burns, and Benedict & Phelps, for appellees.

ELBERT J.

1. Hanna and Kountz were the trustees named in the deed of trust. While both joined in the notice of sale, Hanna alone made the sale and executed the deed to the purchaser. The claim is that the power was joint, that one alone could not exercise it, and that the trust sale was void. Undoubtedly, where the grant is to two or more trustees, all must join in the execution of the trust, unless it should be otherwise provided. It cannot, however, be doubted, that one of two or more trustees named in a deed of trust may execute the trust if by its terms the deed so provide. It is purely a matter of contract between the parties, and the terms of the contract are to govern. Whether or not the deed we are considering provides that either one of the trustees may act is a disputed question. John R. Hanna and Charles B. Kountz are named in the deed of trust as trustees, parties of the second part, 'with power to act severally, and each independent of the other.' While this provision appears among the recitals, rather than in the body of the deed, it is not for this reason to be rejected. The collocation is informal; but plain and unequivocal provisions, showing the intention, and in which is lodged the agreement of the parties, are not to be rejected or given less force because of informal arrangement. It is claimed, however, that this general declaration of power on the part of the trustees to act separately is qualified, not expressly, but inferentially, by the language used in the body of the deed. An examination of the deed discloses that in two separate paragraphs there is provision that the proceeds of sale 'shall be paid to the second parties, or either of them.' In another paragraph it is provided 'that the receipts of the said second parties, or either of them, shall be conclusive,' etc. The power of sale is as follows: 'That in case of default of payment of said notes, or any part thereof, or interest thereon, according to the tenor and effect of said notes, then it shall any may be lawful for the said party of the second part, his heirs, assigns, or successors in trust, to sell and dispose of said premises, * * * and make, execute, and deliver to the purchaser or purchasers at such sale good and sufficient deeds,' etc. There is nothing in the several provisions which we have mentioned authorizing either of the trustees to receive the proceeds of sales, and to give receipts, etc., inconsistent with the general provision that they may execute the trusts severally. It is but a repetition of what has already been declared respecting their separate power. Neither is there anything in the selling clause inconsistent with this general provision. There is no repetition, as in the three clauses mentioned, of what has already been declared to be the separate powers of the trustees; and, upon this absence of reiteration, we are asked to infer an intention upon the part of the parties to the agreement to except the power of sale from the operation of the general provision declaring that the trustees may act severally. The maxim, expressio unius est exclusio alterius, is relied upon by counsel for appellants in support of this construction. We are unable to see that the maxim has any just or proper application. Redeclaring of one or more powers that which has already been declared of all the powers in the deed can have no special force. The power to act severally, in the cases specified, is not strengthened by repetition, nor is the power to act severally in other cases weakened by the failure to repeat. If it is to be called enumeration, the most that can be said of it is that it is a special enumeration embraced within and covered by a broader and more general declaration, and no inference of any value or force can be predicated of it. It is not, however, in truth, a case of enumeration, within the meaning of the maxim, but of repetition, and we know of no rule of exclusion by repetition. In the interpretation of instruments, such a meaning is to be given to them as may effectuate, to the fullest extent, the intention of the parties. In the deed before us, John R. Hanna and Charles B. Kountz are named as trustees, 'with power to act severally, and each independent of the other.' This is a plain provision, and covers all acts under the power. An exception, if intended, should have been expressed. Where parties have expressed their intention, inference of a different intention respecting the same matter is not admissible. If it be permissible at all to subtract from what is expressed, by an exception based on inference, the inference should certainly be of such clearness and force as to be certain and unavoidable. In the view we take, it is unnecessary for us to discuss the doctrine of the case of Smith v. Black, 115 U.S., 308, 6 S.Ct. 50, to which we are cited by counsel for...