Oswald v. Beyer ( 1929 )

DIETRICH, Circuit Judge

(dissenting). 1. By deed reserving nothing but a contingent interest in the net profits, if any, of the enterprise, the bankrupts conveyed the property, to which alone Castle’s contract related, to a. trustee with unrestricted power touching its use and disposition. Castle’s contract was made with this grantee as trustee and not otherwise, and under it he has recourse against such trustee and the trust property, but not against the bankrupts here or against the bankrupt estate, which is entirely distinct from the trust estate. Under such, conditions a trustee is not the agent of the beneficiaries.

2. But, if a contrary view were admissible, by paying the very obligation he had assumed and agreed to discharge, Castle could have withdrawn his property from the lien of the mortgage which was foreclosed, and thus have avoided the loss. The reasons he assigns for not so doing seem to me to be frivolous. I therefore think the judgment should be affirmed.