Porter v. Schofield

• Decision Date: 31 January 1874
• Citation: 55 Mo. 56
• Parties: ROBY S. PORTER, JR., Trustee, etc., Plaintiff in Error, v. JESSE SCHOFIELD, et al., Defendants in Error.
• Court: Missouri Supreme Court

55 Mo. 56

ROBY S. PORTER, JR., Trustee, etc., Plaintiff in Error,

v.JESSE SCHOFIELD, et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Lafayette Circuit Court.

Rathbun & Graves, for Plaintiff in Error.

I. The deed from Thomas J. Porter, as trustee, to defendants Hughes and Wasson, was void upon its face. Kent. Com. v. 4, p. 333, § 4, establishes the doctrine, “that when the consent of a third person to the execution of a power is requisite, the consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon, and the instrument or certificate shall be duly proved or acknowledged.” (Barbour vs. Carey, 1 Kern., p. 397.) In case at bar, the power of trustee Porter, to convey, emanated from his grantor, and requires the request in writing of the beneficiary, which is an essential condition. No such consent having been obtained or given, the sale and deed to Hughes and Wasson, are void both at law and in equity. (Thornburg vs. Jones, 36 Mo., 574; Powers vs. Kueckhoff, 41 Mo., 425; Jackson vs. Clark, 7 Johns., 217; Miller vs. Hull, 4 Denio, 104; King vs. Duntz, 11 Barb. 192; Sherwood vs. Reed, 7 Hill, 431.) Equity will not aid defects which are of the very essence of the power, as in this case, “if the power be executed without the consent of parties who are required to consent to it.” (1 Sto. Eq Juris. [8th Ed.], p. 97, § 97; Janney vs. Spedden, 38 Mo., 395.)

Doniphan & Gaines, and Dunn, for Defendants in Error.

I. In this deed the grantor describes himself, thus, “I Thomas J. Porter, Trustee,” and refers to the subject of the power, as follows: “A part of certain lands, heretofore conveyed by one Levi Vancamp, to the said Thomas J. Porter, in trust for certain purposes, in said deed of trust mentioned, and which said deed of trust is dated March 23rd, A. D. 1865, and is recorded in the Recorder's office for said Lafayette county, in Deed Book N. No. 1; at pages 398-399,” referring directly to the subject of the power, and showing that the said Thomas J. Porter, had in view the subject of the power, in the execution of said deed of conveyance; and he executes said deed in the name of ““Thomas J. Porter, Trustee.” (Hazel vs. Hagan, 47 Mo., 277, 281-282; 2 Sto. Eq. Juris., 1062, note 3, and cases cited; Collier Will Case, 40 Mo., 329-330; 4 Kent. Comm., [6th Ed.] 334-336.)

II. The deed from Levi Vancamp to Thomas J. Porter invested the latter, as such trustee, with full power and authority to sell and convey the real estate, whenever desired to do so by the said Elvira Porter. If such request was given, and said sale assented to by said Elvira Porter, or after said sale was acquiesced in by the said Elvira Porter, such acquiescence was a ratification of said sale, and said trustee is estopped from claiming said land. (Wendell vs. Van Rensalaer, 1 Johns. Ch., 352; Starrs vs. Barber, 6 Johns. Ch., 167, 172; 1 Sto. Eq., [4th Ed.] §§ 385, 388; Heuntson vs. Clark, 13 Mo., 388-390; Taylor vs. Zepp, 14 Mo., 482, 2 Washb. Real Prop., [2nd Ed.] 452; Welland Canal vs. Hathaway, 8 Wend., 480; Corning vs. Gould, 16 Wend., 545; Hughby vs. Barrow, 49 Mo., 103; Ibid, p. 231, 48 Mo., 325.)

H. C. Wallace, for Defendants in Error.

I. By the terms of the deed, the trustee was to collect and receive the rents and profits of the lands therein mentioned, out of which after paying taxes and expenses of repairs, to pay off said mortgages. These mortgage debts are by said deed, made a charge on the whole of the lands on both sides of the road, and this charge constituted a trust to sell said lands, to pay said debts, if they could not in a reasonable time, be paid out of the rents and profits. If the trusts of the deed require a gross sum to be raised, the expression “rents and profits,” will not confine the power to the mere rents; and the trustee may sell. The rents and profits are but the means, which are not to control, but to yield to the end to be accomplished. (2 Sto. Eq. Juris., [4 Ed.] §§ 1064-1064 ai-1064 ib, and notes 2-3, and cases cited; Ball vs. Harris, 4 Myln & Craig, 264, and cases cited; Hazel vs. Hagan, 47 Mo., 277; Green vs. Belchier, 1 Atk., 505; Shrewsbury vs. Shrewsbury, 1 Ves. Jr., 233; Allen vs. Backhouse, 2 Ves. & Beame, 64-76.)

II. The deed made by Thomas J. Porter, to Hughes and Wasson, for the land in controversy, sufficiently shows on its face, that it was made in execution of the power conferred on him, as trustee, by the deed of Levi Vancamp, aforesaid. The deed not only purports to be made by Thomas J. Porter, as “trustee” but the subject matter of the trust, the land conveyed, sufficiently shows the intention to execute the trust. (Hazel vs. Hagan, 47 Mo., 277, 281-2; 2 Sto. Eq. Juris., § 1062 a, and note 3, and cases cited; Collier Will Case, 40 Mo., 287, at pp. 329-330; 4 Kent's Comm., [6th Ed.] 334, 335, 336.)ADAMS, Judge, delivered the opinion of the court.

This was ejectment for land in Lafayette County.

Both parties claim, under Levi Vancamp and under a deed of trust executed by him to Thomas J. Porter, as trustee, first, for payment of certain debts and then in trust for Elvira Porter, wife of John S. Porter, for her life, and, at her death, for her children.

The trusts of this deed are declared in the following language: “To have and to hold the real estate unto the party of the second part, Thomas J. Porter, his heirs and assigns forever; in trust, however, for the following uses and purposes: First, to receive and collect the rents, issues and profits of said property hereby conveyed, and, after paying taxes and necessary expenses of repairing the same, to pay the mortgage and judgments now on the same to Lafayette County, for the use and benefit of common schools, the amount to said county being originally five hundred dollars, borrowed by John S. Porter, who executed a mortgage on part of the above lands to said county of Lafayette; and the said Levi Vancamp was security for him to said county on a promissory note for that sum; and shall also pay the balance of another mortgage on part of said lands, originally executed to Levi Vancamp, the grantor herein, by the said John S. Porter, to secure to said Levi Vancamp, as executor of William S. Vancamp, deceased, the sum of thirty-six hundred and ninety-eight dollars and thirty-four cents, and which said debt and mortgage was assigned by said Vancamp to his daughter, America Nichols, widow of James Nichols, deceased, on which said last mentioned mortgage, there is now due about the sum of nine hundred and forty dollars, principal and interest, and after payment of these two debts, as above mentioned, to pay over all the net profits, rents, issues, etc., to the said Elvira Porter, party of the third part, for and during her natural life and upon her receipt alone and without any control or interference of her husband, John S. Porter, and it is the express understanding and agreement that if the said Elvira Porter desires to sell and convey said real estate, then the said Thomas J. Porter has full power and authority to sell and convey the same or any part thereof, and shall re-invest the proceeds of such sales in other trust property for the use, benefit and interest of the said Elvira Porter herself, without any control of her said...