Price v. Courtney

• Decision Date: 31 October 1885
• Parties: PRICE et al., Appellants and Respondents, v. COURTNEY et al., Respondents and Appellants.
• Court: Missouri Supreme Court

87 Mo. 387

PRICE et al., Appellants and Respondents,

v.COURTNEY et al., Respondents and Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Pettis Circuit Court.--HON. JNO. P. STROTHER, Judge.

REVERSED.

W. S. Shirk and Draffen & Williams for Courtney et al.

(1) The largest discretionary power as to the management of the property was conferred upon Courtney by the will. If a power to mortgage can be conferred by general terms, the will in this case would seem to be sufficient for that purpose, for the will declares that Courtney shall have the same power as the testator himself would have if living. Hill on Trustees, secs. 355, 476; 1 Jones on Mortgages, sec. 129; Starr v. Moulton, 15 C. L. J. 189; Carter v. Bank, 36 Amer. 338. (2) The plaintiffs having received the benefit of the money cannot be granted equitable relief except upon condition that they do equity themselves. Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Shroyer v. Nickell, 55 Mo. 264; Jones v. Manly, 58 Mo. 559; Schafer v. Camsey, 76 Mo. 365; Bagby v. Emerson, 79 Mo. 139; Gilbert v. Gilbert et al., 39 Iowa, 657; Levy v. Martin, 48 Wis. 198; McGee v. Wallis, 34 Am. Rep. 484; Everston v. Central Bank of Kansas, Sup. Ct. Kan. 1885, not reported.

G. P. B. Jackson for Price et al.; for brief see next preceding case.

RAY, J.

By a stipulation filed in the above entitled causes it is agreed that they are cross-appeals and belong to the same cause, and are submitted on the same briefs and abstracts. The object of their suit is to have declared null and void a deed of trust on certain lands, and the note thereby secured which were executed to Mentor and D. W. Thomson. This litigation arose in regard to the will of H. M. Price and the powers therein conferred on Courtney, the executor, trustee, guardian, and curator therein named.

The provisions of said will, so far as material to the present controversy, are in these words:

“ Second. I do hereby devise and bequeath to Peter Courtney, of Pettis county, all my estate, money and property, real and personal, wherever situate, all claims and demands due, and all and every kind, and interest I may have in all property of every kind, in trust, for the purposes hereinafter stated and set forth. It is my desire, that upon my death, the said Courtney qualify himself according to law, and enter upon the administration of my estate, and I do hereby name and appoint him, the said Peter Courtney, as executor of this, my last will and testament. That as soon after my death as possible, that he take full and complete charge of my estate. It is my desire that said Courtney manage and control my business, and all of my unsettled matters, as he deems best, for my children; that he invest my money or loan it out, or otherwise manage or control it as nearly as I might do it, were I living, in whatever manner, in his judgment, may be to the interests of my children. And I do hereby empower him, the said Courtney, to grant, bargain, and sell and convey any real estate I may own at the time of my death, at such times and for such price and in such manner as he deems to my best interest; and, also, to invest my money in real estate, stocks or bonds, or whatever else he deems advantageous, with full power to buy and purchase, and to sell, convey and transfer the same. It is my desire that in and about the entire management and control of my said property, that the said Courtney shall have full power to do with the same as I would were I living; and I desire said Courtney to have, keep and preserve said property, and all the increase thereof, as trustee for my children, and to be kept and managed by him, for them, until such time as, by the terms of the will, he is required to pay the same over to them. I desire him, the said Courtney, also to act in the capacity of such trustee, as the guardian, as well as the curator, of my children, and out of my estate to pay all the expenses necessary to be incurred in rearing and educating them, so that each shall receive from my estate a support until they marry or attain their majority, as well as a good education, and so that, in the final settlement, all may share the estate equally, except as hereinafter stated.”

After hearing the evidence in the cause, the substance of which will accompany this opinion, the court made a finding, partly in favor of plaintiffs, and partly in favor of the defendants, finding that the will of H. M. Price gave no power to Courtney to borrow money or execute incumbrances upon the land of the estate or heirs of H. M. Price; and that the deed of trust from Courtney to Mentor Thomson, for the use of D. W. Thomson, was null and void, and executed without authority; and, also, finding that, of the money represented by the note to D. W. Thompson, a portion was used by Courtney to pay taxes on land held in trust by him for plaintiffs, as follows: $137.35 on land in Bates county; $232.73 on land in Johnson county, and $88.71 on land in Pettis county, not the land in controversy, and that the defendant, D. W. Thomson, is entitled to enforce payment out of the land in controversy, of the sum of $459.29, so paid for taxes, and that said sum, with interest and costs of this suit, should be a lien on the land in controversy, and that said land should be sold to satisfy the same, and judgment was entered accordingly.

From this decree both parties appeal, the heirs of Price, the plaintiffs, because any lien was decreed against their land to pay any money borrowed by Courtney from D. W. Thomson, and to secure which he had executed the deed of trust to Mentor Thomson, on the land in controversy. The defendants appeal from the decree because they claim that the deed of trust should not have been set aside and declared null and void, but that the entire decree should have been in their favor. So that these two cross-appeals present for determination, two questions: 1. Whether the will conferred power on Courtney to make a valid deed of trust on the land of his wards. 2. Whether, if no such power was conferred as aforesaid, the decree was authorized which gave a lien on the lands of the heirs, for money which Courtney had borrowed of Thomson, and ordered a sale of such lands in discharge of such lien. These questions will be considered in their proper order, because it is apparent that if Courtney had the power bestowed upon him by the will, to encumber the estate by mortgage or otherwise, that the entire decree, instead of only a portion thereof, should have been in favor of the defendants.

Did Courtney then have such power conferred on him by the will of his testator? After attentively considering the terms of the will, and examining the authorities on the subject, we have arrived at the conclusion that no such power was conferred. It is to be observed of the will under consideration, that it nowhere, in express terms, confers any power on Courtney to mortgage or otherwise encumber the property devised to him by his testator. Nor do we think such power is to be inferred by the exercise of any reasonable implication. The power conferred by the will, whatever its extent, was a mere naked power. Waldron v. McComb, 1 Hill, 3. A devise that executors or others may sell is always thus construed. 1 Chance on Powers, 52-3 (Lond. Ed. 1831). And the degree of strictness with which such powers are construed is a very familiar rule to the profession.

This subject will be found learnedly and elaborately discussed in the case of Bloomer v. Waldron, 3 Hill, 361, by that eminent jurist, Judge Cowen. The action was ejectment, and the question was whether a sale under a mortgage, made professedly in execution of a power assumed to be conferred by the will, passed title or not. The will was very much such an one as that now before us; it devised certain land to the testator's widow during her widowhood for the support of herself, three daughters, and one P, and in case of her death, etc., to P, during his life, for the support of himself and the daughters, with remainder to the daughters in fee; it also gave to the widow and to P, while she remained single, and to P after her death or re-marriage, full power and authority to sell and convey all, or any part of the estate, provided A B should consent in writing; the money arising from such sales to be invested and secured for the purposes of the will, as A B should direct. The widow mortgaged the land in fee to raise money for the support of the persons named in the will. A sale of the land took place by reason of an equitable foreclosure. The mortgage contained the written consent of A B, and...