Reid v. Gordon

• Decision Date: 15 February 1872
• Citation: 35 Md. 174
• Parties: ANDREW REID v. ANNIE B. GORDON, and others.
• Court: Maryland Court of Appeals

35 Md. 174

ANDREW REID v. ANNIE B. GORDON, and others.

Court of Appeals of Maryland

February 15, 1872

APPEAL from the Circuit Court for Baltimore County, in Equity.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, ALVEY and ROBINSON, J.

Frederick J. Brown and Geo. Wm. Brown, for the appellant.

The conveyance by Annie Barnum (now Gordon) of her life estate in the house and lot on Mount Vernon Place, by her deed of marriage settlement, extinguished her power of sale under the twelfth clause of the will for the following reasons:

The power of sale given under said clause of the will, is a power to sell in fee; this is clear from the object of the sale which is to invest the proceeds of sale of the entire estate for the benefit of the wife for life, and for the children and descendants of the testator in remainder; and such is the power which the said Annie in connection with her co-trustees attempted to exercise. 2 Washb. on Real Prop., (313 marg.,) top, 603; 1 Sugden on Powers, 476.

The power vested in the wife is a power appendant. A power appendant is where a person has an estate in the land, and the estate to be created by the power is to (or may) take effect in possession during the continuance of the estate to which the power is annexed, as a power to a tenant for life in possession to make leases. A power in gross is where the person to whom it is given has an estate in the land, but the estate to be created under or by virtue of the power, is not to take effect until after the determination of the estate to which it relates. A power simply collateral, is one given to a person who has no interest in the land, and to whom no estate is given. 4 Kent, 317; 1 Smith's R. & P. Prop., 4 th ed., 346, Part II, tit. 9, ch. 3.

This power appendant in the wife, was extinguished by the deed of marriage settlement; because the power cannot be exercised without defeating or prejudicing the interest granted, to wit: the interest granted to the husband, and the children of the marriage. The interest of the husband and children was to arise in case of sale, but the property has actually been sold, and in such a manner as to deprive the husband and children of all interest in the proceeds. Such a sale being in derogation of the rights created by the deed, is absolutely void.

"A total alienation of the estate operates as an extinguishment of a power appendant, where it cannot be exercised without defeating or prejudicing the interest granted. Thus, if a tenant for life with power to grant leases in possession conveys away his life estate, the power is extinguished because the donee could not exercise it without derogating from his own grant." 1 Smith's R. & P Prop., (4 th ed.) 358, (89 Law Lib., 264, marg.;) 1 Sugden on Powers, 47, ( marg.,) sec. 2, (15 Law Lib., 51, marg. 52;) 1 Sugden, 48, Goodright vs. Cator, Doug., 460; 1 Sugden, 48, Noel vs. Henley, McClell. & Yo., 302; 1 Sugden, 49, 50, 51, Bringloe vs. Goodson, 4 Bing., N. C., 726; 1 Sugden, 53, 56, 58, Long vs. Rankin; 1 Sugden, 59, 68, 73, 84, 85; 2 Washb. Real Prop., 309, sec. 4; 4 Kent's Comm., 347; Burton on Real Property, secs. 175, 177, 178, and note.

The rule is believed to be without an exception, that if a party holding an estate with a power appendant, makes a grant, he shall not defeat, prejudice or derogate from the grant by a subsequent exercise of the power.

Formerly it was held that a power appendant was destroyed by a mortgage, or charge upon the estate to which the power is appendant. Vincent vs. Ennys, 3 Vin. Abr., 432, pl. 10; Cocker vs. Ennys, 3 Vin. Abr., 432, pl. 10.

But since the decision of Lord MANFIELD, in Ren vs. Buckley, 1 Doug., 292, in which the equitable principle that a mortgage is only a security, was invoked to qualify a doctrine of the Common Law, it has been held that a power appendant is not destroyed by a mortgage, security or charge, but it may be suspended, controlled or qualified thereby. Smith's Real & Pers. Prop., marg., 264, (89 Law Lib., 201.)

A mortgage, security, or charge on an estate to which a power is appendant, is therefore always held good, and the power remains unextinguished only so far as it can be exercised in strict subordination to the estate previously granted.

If the estate conveyed by the deed of marriage settlement be respected, it is impossible for the power under the will to be carried out.

Under the deed and will, 1st, the estate to be sold is different; 2d, the trustees are different; and 3d, the appropriation of the proceeds of the sale is different; so that if the deed stands, the power under the will is destroyed, and if the power under the will remains and is exercised, it destroys the deed. Bringloe vs. Goodson, 4 Bing., N. S., 276.

By virtue of the deed of trust, all the property was conveyed to the trustee for the benefit of the wife, and afterwards to her husband and children in remainder, and the legal title was therefore vested in the trustee for the benefit of wife, husband and children, and although a power of sale is given to the wife, the legal title remains in the trustee and cannot be passed without his joining in the conveyance. The contract therefore by the wife without the concurrence of the trustee under the deed, and a deed executed by her would not convey a good title to the purchaser. Ware vs. Richardson, 3 Md., 505.

The deed being a deed of bargain and sale, the legal estate remains vested in the trustee, and under the power only a trust estate can be granted. The Statute of Uses cannot vest the estate in any bargainee not expressly named, because where the persons are altogether uncertain and the terms unknown, there can be no consideration. Sugden on Powers, 160, 15 Law Lib., 86; Cornish on Uses, 89, 3 Law Lib.; Watkins on Conveyancing, 238.

John P. Poe and Wm. Pinkney White, for the appellees.

By no fair construction of the marriage settlement can it be shown that Mrs. Gordon intended to extinguish, or, in fact, did extinguish, her previously existing undoubted power to sell the property in question.

She did not thereby sell her property, or any part of it, but, owning a considerable estate--real, personal and mixed--some in fee simple, some absolutely, and some (including this house and lot) for her life, she settled the whole of it upon certain trusts, reserving, however, as full and complete a power of sale over the whole or any part of it as she had before she executed the deed.

If the sale be treated as made in execution of the power under Mr. Barnum's will, then the marriage settlement does not affect it at all.

If, on the other hand, the marriage settlement be interpreted as reserving to her the same power with reference to this property as the will gave her, there can then be no objection, so far as the mere sale is concerned, to this exercise of the power.

In either event the sale is valid, and transfers the whole estate to the purchaser. In the one case the marriage settlement is left entirely out of view. In the other, it confers the very power which is executed.

How then a sale subsequent to the marriage settlement, in execution of the power which such marriage settlement reserves, can defeat the marriage settlement containing such power, it is difficult to perceive.

The sale to the appellant is not a sale within the contemplation of the marriage settlement--it is not a sale of Mrs. Gordon's life estate separate from the remainder which, under Mr. Barnum's will, belongs to his children--but it is a sale in fee simple of the whole estate in execution of her power under his will.

By her marriage settlement she conveys, in trust, the fee in what she owned in fee, and the life estate in what she held for life, reserving the power to sell, at her pleasure, the fee as to what she owned in fee, and the life estate as to what she held for her life. She makes no provision in it for the case of her selling, under the power in the Barnum will, the whole fee simple estate in the property in which she had a life estate; but the marriage settlement relates (so far as this property is concerned) exclusively to her own life estate, distinct from the estate which she did not own, but still had the power to dispose of.

Now, if in execution of the power reserved in her marriage settlement, she had sold to the appellant her life estate in the property in question for $10,000, as she undoubtedly might have done, she could have executed a valid deed to him for the life estate so sold to him, and this $10,000 would have passed to her trustee under her marriage settlement, to be invested for herself for life-- then for her surviving husband, Mr. Gordon, for his life, then for her children by him, and then upon certain contingencies for her Barnum children.

If she had died the next day after making such supposed sale of her life estate, the title so bought would have ceased eo instanti, and her Barnum children would immediately have become entitled to the whole property.

Instead however, of making a sale of so much of the estate as belonged absolutely to her, and the proceeds of which she had a right to dispose of as she pleased, she has undertaken to sell, under the power given to her in Mr. Barnum's will, the whole interest in the property in question. This of course converts a piece of real estate into cash; and the appellant maintains that she is entitled absolutely to a certain aliquot part of this cash, to be ascertained according to the rule by which a potential dower is estimated-- which aliquot part is to be deducted from the whole purchase money, and handed over to her trustee to be invested as provided in the marriage settlement. The appellees on the other hand, insist...