Dawson v. Ramser , 58 Ala. 573 ( 1877 )

STONE, J.

The leading, if not the sole purpose of the present suit, is to have the sale and conveyance of the house and lots to Eamser, set aside and vacated, and the title decreed to be “in the heirs and legatees and distributees of said William L. Cowan, and the administrator of said estate placed in the peaceable possession of the same, that the same may be applied to the payment of said advancements, and equitably distributed under the provisions of said will of said William E. Cowan.” The bill does not pray a settlement of Fleming’s administration of Cowan’s estate, and does not pray that the further execution of the will, or ■Fleming’s settlement, be transferred to the Chancery Court. It makes no complaint of the administration of Fleming, and does not seek to hold him accountable for an unequal distribution of the assets. If the bill contained the necessary averments and prayer to raise these questions, it is questionable if some of them at least would not be incongruous with the main purpose of the bill. We will, then, treat the bill as having for its sole purpose the vacation of the sale to Eamser.

1. The power in Cowan’s will is in the following language: “My wife is to have the power of selling or exchanging any of the property devised to her, for cash or other property, provided the power is exercised by and with the advice and consent of James L. Pugh and Dr. Sam. C. Cowan.” The will contained the following clause, anterior in position to the one copied above : “All my estate left, after the payment of my debts, I give and devise unto my beloved wife, Ann S. Cowan, to be kept together, used and managed by her as she may think proper. My unmarried children to remain with her free of charge for support and maintenance until they marry; and as each child marries, it shall receive in money or property two thousand dollars, to be advanced whenever my wife thinks she can do so, without injury or embarrassment. ’ ’

It will be observed that this will confers on testator’s wife very large discretionary powers, limited in the matter of selling or exchanging any of the property devised, by the sole condition, that it be done with the advice and consent of the two persons named. The deed is an ordinary deed of bargain and sale from Mrs. Cowan to Eamser, conveying the lots in controversy. The concluding clause is in the following language : “In witness whereof I have hereunto set my hand and affixed my seal to this conveyance, with the knowledge and consent of Dr. Satíi. Cowan and my brother, James L. Pugh, as by my husband’s will directed.” This deed was signed, sealed and delivered January 1, 1866, in the presence of two subscribing witnesses, and on it was indorsed the following: “January 19, 1866. We hereby ratify and confirm the above sale and conveyance to Jacob Ramser by Mrs. Ann S. Cowan. (Signed) ¡S. C. Cowan, J. L. Pugb.” It is proved, not only that the sale and conveyance were made with the knowledge and consent of Cowan and Pugh, but under their advice previously given. It is also proved that Ramser paid the entire purchase money in cash, and that the price paid was the market value of the property. Under these facts, we agree with the chancellor that the will of Mr. Cowan contains a power of sale to Mrs. Cowan, and that she fully conformed to the power and its conditions in making the deed. Buford negotiated the terms of sale, as he was requested to do. For such service, no written authority was necessary. The deed was the consummation — indeed, the making of the contract. Till it was executed and delivered, no contract was made which the law could recognize or enforce. — Code of 1876, § 2121, subd. 5. The sale and conveyance were made by Mrs. Cowan. — See 2 Sto. Eq. Ju. 1062a, and note 2.

2. It is contended that the money derived from this sale was misapplied, and therefore the sale should be annulled. It is not necessary for us to inquire whether there was such misapplication. All knowledge of this is denied by Ramser, and there is no testimony offered to sustain the charge. One who buys in good faith from a trustee having power to sell, and pays the purchase money, is not responsible for its application, unless it be made to appear that the person making such payment colluded with the trustee, or knew of his intention to waste or mismanage the funds. — Code of 1876, § 2197. We do not say there is any evidence of misapplication in this case.

The decree of the chancellor is affirmed.