Zane v. Kennedy ( 1873 )

The opinion of the court was delivered, March 6th 1873, by

Sharswood, J.

The only question which appears to have been raised on the trial of this case in the court below was, whether the power of sale which by the deed of trust of February 28th 1832, John Zane and wife to William L. Hirst, was vested in the trustee, was duly exercised by the conveyance of January 30th 1841, by William L. Hirst and Maria Antoinette Zane to Anthony M. Zane. It may be conceded, that if the evidence offered — the rejection of which forms the fourth error assigned — had been admitted, it would have proved that the deed was without consideration as between the parties, and was executed solely in order that the grant#, Anthony M. Zane, might mortgage the property to Isaac M. Zane, as was done accordingly, February 1st 1841; whieh mortgage was to be, and was assigned to Kennedy and others, as collateral security for certain notes of Isaac M. Zane, given to the assignee for goods purchased by him, the object of the whole transaction being to set Isaac M. Zane up in business. Isaac M. Zane was a son of Maria Antoinette Zane, who was the cestui que trust in the deed of trust of February 28th 1832, and who was a party to the deed to Anthony M. Zane. The power contained in the deed of 1832, is in these words: “ And upon the further special trust and confidence that the said William L. Hirst, his heirs, executors, successors and assigns, shall be, and he and they are hereby, and by force and virtue of these presents, authoi’ized and fully empowered to sell and convey, by all lawful assurances and conveyances, all or such parts of the said hereby granted estate, as the said Maria Antoinette shall, by writing under her hand, from time to time request and require, and for and as respects the purchase-money thereof, upon the special trust and confidence, that he the said William L. Hirst, his heirs, executors, successors and assigns, shall and will pay the same to the said Maria Antoinette, and her receipt for the same shall be his full voucher and protection for so doing, notwithstanding her present or any future coverture.” The question then is, whether the trustee, at the request, and with the consent in writing, of the cestui que trust, had power to mortgage the premises. It is perfectly clear that if he had, Mrs. Zane was entire mistress of the money raised by the mortgage, and could give it to her son, Isaac M. Zane, if she so pleased. In a case in which a married woman had power to mortgage for her separate use and disposal, it was held by this court that she could execute the power for the benefit, of her husband: Hoover v. The Samaritan Beneficial Society, 3 Wharton 445. The whole case, then, is resolved into the question whether in this state an absolute and unrestricted power to sell includes a power to mortgage. We cannot regard this as an open question. It was expressly decided in Lancaster v. Dolan, 1 Rawle 231, that a power to sell does include a power- to mortgage, which is a conditional sale. It was not a mere obiter dictum, but the very point upon which the judgment hinged as to the remainder of the estate, over which there was a general power of appointment. It has since been recognised as the settled law in several cases: Presbyterian Corporation, v. Wallace, 3 Rawle 109; Gordon v. Preston, 1 Watts 386 ; Duval’s Appeal, 2 Wright 118 ; Pennsylvania Life Insurance Company v. Austin, 6 Id. 263. It is of no consequence whether the case of Mills v. Banks, 3 P. Williams 9, cited in support of the ruling in Lancaster v. Dolan, has or has not been subsequently disapproved of in England. Wo are bound to adhere to a determination of this court settling a rule of property, which has been so often recognised and affirmed. There would be no security for titles, nor could counsel advise with confidence if we were ready to listen to suggestions for the reconsideration of points solemnly determined by our predecessors whenever the courts of some other state or country have adopted a different rule.

There are two other objections to the judgment which were not made below, nor are they contained in the printed paper-book of the plaintiff in error; but we will, nevertheless, briefly dispose of them. The first is, that as there was evidence that the promissory notes of Isaac M. Zane, to secure which the mortgage was intended, had been extended without the consent of Mrs. Zane, who was known to all parties to he the real mortgagor, and should, therefore, to the extent of the mortgaged premises, be viewed as a surety, the mortgage was discharged by such extension. There was no evidence to submit to the jury, upon which such a defence could be based. A witness for the plaintiff, indeed, testified that in a general conversation with Mr. Julian, one of the assignees of the mortgage, he said, “ that they had done all they could for Isaac; that they had extended the notes for which the assignment of the mortgage was made as collateral, several timesbut on cross-examination he added: “ Nothing was said about any consideration having been given by Isaac for the extension of the notes; does not know that there was any consideration, or that the old notes were given up.” A mere agreement to extend the time without consideration, and without a surrender of the old notes, and the taking of new ones, would not be binding on the creditor, and would not prevent the surety from paying the debt and immediately seeking reimbursement from his principal, which is the reason of the rule that when time is given by a binding agreement, the surety is discharged: The United States v. Simpson, 3 P. R. 437; Clippinger v. Creps, 2 Watts 45; Rhoads v. Frederick, 8 Watts 448; Miller v. Stem, 2 Barr 286; 2 Jones 383; Brubaker v. Okeson, 12 Casey 519. There is nothing, therefore, in this objection.

The other ground upon which a reversal of the judgment is asked, is, that the execution of the power was subject to the prior charge of the debts of John Zane, specially secured by the deed of trust. But there are several conclusive answers to this. These debts were charged upon and made payable only out of John Zane’s interest in the property, which was for his life, probably his estate by the curtesy, and that interest had expired at the time of the trial. Moreover, more than twenty years had elapsed since the execution of the deed of trust, and the presumption was that the debts were paid. Besides all this, the claims of these creditors could only be set up by themselves, or the trustees suing for their use. The plaintiff below was not the holder of the legal title, nor a trustee for them, but a cestui que trust, under the deed of trust, prosecuting this ejectment to recover the equitable estate, if it had not been legally divested by the mortgage, and the proceedings upon it, by which, however, both the legal and equitable *• title were vested in James M. Kennedy, the purchaser at sheriff’s sale, a title which the plaintiff had herself solemnly confirmed, by joining the new trustee, Thomas D. Smith, in the deed dated May 7th 1844. Judgment affirmed.