Leland v. Faulk ( 1919 )

SOMERVILLE, J.

The object of this proceeding is to secure a judicial construction of the terms of a deed of trust executed by the complainant and others to the respondent.

The first paragraph of the deed of trust sets out the duties and powers of the trustee with.respect to the management of the two plantations, the title to which has been.invested in him as trustee, and the disposition of the rents and income derived therefrom, including the provision for renting out and collecting the rents, and “paying the taxes on said plantations and homestead, so long as the latter is occupied as such.’’ (Italics supplied.)

The eighth paragraph provides that the trustee “shall pay all taxes, and sidewalk, street and sewer assessments against the homestead; and shall keep the same in a reasonable state of repair; * * * and shall also keep said homestead insured; and all such assessments, charges and expenses shall be a charge against said plantations, until the sale of said farms.”

The specific points in controversy are: (1) Whether the trustee’s mandate to pay taxes and municipal assessments was operative after October, 1916, when the homestead property was rented for business uses, and ceased to be the residence of its owners; (2) whether, in any event, the trustee is authorized or required to pay such taxes and assessments, and to keep up reasonable repairs . and insurance on said homestead by borrowing the necessary funds in case the rents derived from the plantations are, at the time needed, insufficient for those purposes; ' and (3) whether, upon the expiration of his powers and duties under the deed of trust, on, to wit, December 30, 1917, the farms remaining unsold, the trustee was thereafter authorized or required to make any of the said expenditures specified in the deed of trust in favor of said homestead, by virtue of any provision therefor to be found in the first trust agreement.

[1]1. It is clear enough that the eighth paragraph of the deed of trust, considered apart from the first paragraph, would impose upon the trustee the duty of paying all taxes accruing on the homestead during the specified term of his trusteeship under this deed, viz. from December 24, 1912, to December 24, 1917.

But it is equally clear that, unless the limitation upon such payments, as stipulated in the first paragraph, is read into the eighth paragraph also, it must be summarily discarded. Obviously the two paragraphs must be construed in pari materia, and effect must be given to every provision of each, if this cari be done consistently with their harmonious operation, and with the intention of the parties as ascertained from the entire instrument.

The question is by no means free from doubt, but we think that the obligations imposed upon the trustee by the terms of the eighth paragraph — more clearly the obligation to pay the taxes on the homestead — are subject to the limitation prescribed in the first paragraph, viz. “so long as the homestead is occupied as such.”

Taking the instrument as a whole, we are led to the conviction that, although the word “homestead” may have been used in part as a descriptive term for the old family home, as distinguished from the farm properties, it nevertheless embodied also the idea of its continued occupation by the two beneficiaries who then owned it and occupied it, or contemplated so doing.

If the limitation in question is not a qualification also of the obligations imposed upon the trustee by the eighth paragraph, and if that paragraph is to be literally and independently construed, it would seem that the benefits thereby provided for the homestead would follow the property, in the contingency of its alienation during the period of trust, into the hands of strangers, and thus inure to their benefit — a conclusion which of course cannot be entertained.

We think, therefore, that the trustee’s obligation to pay the taxes on the homestead ceased upon the termination of its occupancy as such in October, 1916.

[2] 2. While the first paragraph of the deed of trust seems to contemplate, by implication, that taxes due on the homestead are to be paid out of farm rents collected by the trustee, the eighth paragraph is explicit that such taxes shall he paid by him, and that, when paid, they “shall be a charge against sedd plantations,” and not merely against their rentals.

We think this duty is made mandatory upon the trustee, and that he would be authorized and required to borrow the money necessary for that purpose, if not otherwise in funds.

[3] 3. It seems entirely clear that, upon the termination of the five-year period of trusteeship under this deed of trust and the reversion of the trustee’s powers and duties to the terms and limitations of the prior and original trust agreement, he is under no duty, and is without authority, to pay the taxes, or .do the other things required by the later deed of trust, for the benefit of the homestead. This results from the provision of the second paragraph of the deed of trust that, “in the event said plantations should not be sold (at the expiration of the five years trust), then said trustee shall continue in the discharge of this trust under, and in pursuance of the provisions of the agreement hereto attached,” since in the agreement referred there is no provision for the payment of any taxes by the trustee except those due upon the farms.

The decree of the circuit court will be reversed, and the cause will be remanded for further hearing in accordance with the foregoing opinion.

Reversed and remanded.

ANDERSON, O. J., and MAYFIELD ana THOMAS, JJ., concur.