McNeill v. Lee

• Decision Date: 19 December 1901
• Citation: 30 So. 821,79 Miss. 455
• Court: Mississippi Supreme Court
• Parties: WILLIAM MCNEILL v. WILLIAM D. LEE ET AL

30 So. 821

79 Miss. 455

WILLIAM MCNEILL v. WILLIAM D. LEE ET AL

Supreme Court of Mississippi

December 19, 1901

October 1901

FROM the chancery court of, second district, Hinds county. HON HENRY C. CONN, Chancellor.

McNeill the appellant, was complainant in the court below; Lee and others, the appellees, were defendants there. From a decree sustaining a demurrer to the bill of complaint and dismissing the suit, the complainant appealed to the supreme court. The opinion fully states the case.

Affirmed.

Wells & Wells, for appellant.

It will be noted that the deed executed by McNeill was direct to Lee, investing him with the legal title to the lands, and that Willis was simply given a power of sale. This power of sale did not authorize Willis to convey the legal title, which was in Lee. Willis might have negotiated a sale, but it was necessary to the cutting off of the equity of redemption that Lee should have confirmed it by executing a deed conveying the legal title. Willis could, by his deed, convey only what was invested in him, and he had only a power of sale. Sanders v. Cassidy, 86 Ala. 248; Bernard v. Duncan, 38 Mo. 181; Donohue v. Chase, 130 Mass. 137. And it is held in this state that the legal title must be in the trustee when he sells. Doe v. Robinson, 24 Miss. 688. See also Woods v. Rozelle, 75 Miss. 793; Fowle v. Merrill, 10 Allen (Mass.), 350; McNeill v. O'Conner, 3 Col. App., 113; Re Hudson, etc., 35 Eng. Chy. Div., 668; Perry on Trusts (4th ed.), sec. 602 (i), (j), (k), (aa); code 1892, § 2444, which seem confirmatory.

A trustee conveys only the title vested in him by the trust deed, and the purchaser takes notice of the title as it stands in the trustee. 2 Jones on Mortgages, sec. 1889; Seimens v. Schrader, 88 Mo. 23; Hospes v. Almstedt, 13 Mo. App., 270; Bateman v. Burr, 57 Cal. 183; Devin v. Handerslate, 32 Ia. 193; Wernecke v. Lamb, 71 Ill. 93; Green v. Gaston, 56 Miss. 752; Catlett v. Bacon, 33 Miss. 269; Hill v. Boyland, 40 Miss. 640; Harlow v. Mister, 64 Miss. 25.

Lee, the beneficiary, having, before the pretended sale made by Willis, appointed another, under the terms of the deed in trust, as substituted trustee, all power was gone from Willis. Lee is estopped to deny the validity of the appointment made by him. Herman on Estoppel, secs. 1038, 1039, 1040. The erasure of the writing, indorsed on the deed appointing a substituted trustee, did not and could not alter its effect. Adams v. Mills, 71 Miss. 150. There was no power in the deed to appoint successive trustees. But, we submit, the decree appealed from must be reversed, because the bill alleges that there never was any default in payment on McNeill's part authorizing any trustee to sell. This averment, of course, was admitted by the demurrer.

J. M. Shelton, for appellees.

By conferring power of sale on Willis, McNeill gave him power to convey the land, else the power of sale was nugatory. Pingrey on Mortgages, secs. 1332, 1405; Alexander v. Caldwell, 61 Ala. 543; Brisbane v. Stoughton, 17 Ohio 428; Perry on Trusts (4th ed.), sec. 602(g); 26 Am. & Eng. Enc. L., 187; Hunter. v. Wooldent, 55 Tex. 433; Fogarty v. Sawyer, 17 Cal. 592; Williams v. Otey, 8 Hum. (Tenn.), 568; Vallentine v. Piper, 22 Pick. (Mass.), 75; Lindley v. O'Reilly, 50 N. J. (Law), 636; Long v. Stansel, 106 Ala. 389; Jones on Mortgages (4th ed.), sec. 1889. A careful reading of Woods v. Rozelle, 75 Miss. 782, relied upon by appellant, will disclose that it is really an authority in our favor; we count upon it.

The point made by appellant to the effect that the decree appealed from should be reversed because of the averment of the bill that Lee had not made default in the payment of the debt, is without merit. The instrument to be construed was executed in March, 1890, and the sale did not take place until more than five years thereafter. The trustee's deed is an exhibit to the bill, and, under our statute (code 1892, § 528,) is a part of the bill, and it states affirmatively that the debt was due and unpaid at the date of the sale, and the original note, a part of said exhibit to the bill, shows on its face that it matured long before the sale. The bill stood, therefore, on demurrer as if it contained contradictory averments on the subject, and, of course, the pleading is to be construed strictly against the pleader.

There can be no merit in the contention than an ineffectual and void effort by Lee to appoint a substitute trustee deprived Willis of the power of sale.

Argued orally by W. Calvin Wells, for appellant, and by J. M. Shelton, for appellee.

OPINION

TERRAL, J.

On March 15, 1890, William McNeill executed his note to W. D. Lee for $ 408.47, payable October 15, 1890; and to secure the same he executed a deed of trust on certain lands therein described, by which he conveyed said land to W. D. Lee, Sr., and therein appointed A. J. Willis trustee to sell said land in default of payment of said debt. Said deed of trust authorized said Lee to appoint another trustee in place of Willis, if for any cause he should not be present, able, and willing to execute said trust. The property, on due notice, was sold by Willis, to the beneficiary (Lee) for $ 40, and a conveyance of it was made by Willis to Lee. This bill is filed to annul the conveyance of said land by Willis to Lee, and for redemption. A demurrer to the bill was sustained, and complainant appeals.

The proceedings under the deed of trust are attacked upon three grounds: (1) Because Willis, trustee, is said to have lost his power to make said sale; (2) because the bill demurred to alleges that there was no default on the part of McNeill in the payment of said debt; (3) because no title to the land was vested in Willis.

1. The sale of the property by Willis was made on June 10, 1895; and the bill alleges that on February 9, 1893 W. D. Lee, Sr., appointed his son, W. D. Lee, Jr., as substituted trustee, and for that reason the sale of the land by Willis was void. The authority to appoint a substituted trustee under a stipulation contained in a deed of trust is a strict power, and such an appointment cannot be made, except upon the happening of the precise event specified in such deed. Guion v. Pickett, 42 Miss. 77. Hill on Trustees says: "No person interested could be advised to rest satisfied with the appointment of a new trustee...