Woods v. Rozelle

delivered the opinion of the court.

This was a suit instituted in the chancery court of Coahoma county by the appellees for the cancellation of a certain deed of conveyance made by E. M. Yerger, sheriff of said county, to W. H. Dickerson and M. A. T. Dickerson, executor and executrix of the estate of P. C. Dickerson, deceased, in Eebru-ary, 1887, as a cloud upon appellees’ title to the lands so conveyed. -This conveyance was made after sale, under the provisions of a trust deed made by appellee, A. B. Rozelle, and his wife, Emma D. Rozelle, then in life, but now deceased, in *794favor of said P. C. Dickerson, then, also, in life, but now also deceased. The question presented as to the validity of the deed here sought to be canceled is to be determined by the proper construction of the trust deed under which the sale and conveyance of the lands were made.

We quote from the trust deed certain important parts whose consideration and construction will make susceptible of easy solution the inquiry suggested in our last sentence, and with this question properly answered, the other points argued by counsel will be found to be self-solving.

We quote: ‘ ‘ For and in consideration of the sum of ten dollars cash in hand paid, the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, said parties of the first part (A. B. Rozelle and Emma Rozelle) have this day bargained, granted, sold, aliened and conveyed, and by these do hereby grant, bargain, sell, alien and convey, to said party of the second part (P. C. Dickerson), his legal representatives, heirs and assigns, forever, all of the following described lands,” etc. Plere follows in the deed in trust the description of the lands, and then the consideration for the execution of the note and the trust deed securing its payment, viz.: $11,048.25 due from the grantors in the trust deed to the grantee therein, and evidenced by their said promissory note of that ‘date.

The trust deed then proceeds: “Now, therefore, if this note be paid off and discharged, with all interest accrued thereon when the same becomes due and payable, then this deed of trust shall be void and of no effect, and the property herein conveyed shall be reverted at the cost of the said parties of the first part. But should the said A. B. Rozelle and Emma D. Rozelle fail ór refuse to pay the said debt or the said interest, or any part thereof, when the same or any part thereof shall become due and payable, then the whole shall become due and payable, and this deed shall remain in full force and effect. And the said party of the second part, or, in case of his *795absence, death or refusal to act in anywise, then the acting-sheriff of the county and state aforesaid, at the request of the legal holders of said note aforesaid, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, for cash, at Friar’s Point, . . . and upon such sale said party of the second part (his successor or successors in trust, as the case may be, in fee simple of the property sold), shall execute a deed or deeds to the purchaser or purchasers thereof, and shall receive the proceeds of said sale, out of which shall be paid, first, the costs and expenses of executing this trust, including compensation to the trustee for his services, and next shall apply the proceeds remaining over to the payment of said note and interest, or so much thereof as remains unpaid, and the balance, if any, shall be paid to the said parties of the first part, or their legal representatives. ” By this instrument, it will be noticed, the land was sold and conveyed to P. C. Dickerson, his legal representatives, heirs and assigns, and not to the acting sheriff, or any other stranger to the transaction. After condition broken, the title to the property was vested in Dickerson, his legal representatives, heirs and assigns.

It will next be observed that by the express terms of the trust deed, upon default made in payment, P. C. Dickerson, the grantee, was authorized to sell, and, the title being in him, to make deed or deeds to the purchaser or purchasers at such sale. Then, to meet three future possible contingencies, it is stipulated that the acting sheriff may sell — simply sell — in case of the death, absence, or refusal of Dickerson to act — that is, to sell, but then only when requested by the legal holders of the said note. This provision was inserted to meet all possible contingencies that might thereafter occur. Dickerson might die without having assigned the note, in which event his legal representatives or heirs would have no power to sell on default, and, therefore, this provision was inserted, by which the acting sheriff could make the sale upon the request of Dickerson’s legal repre-*796sontatives or heirs; or, Dickerson might die, be absent, or refuse to act, after having assigned the note, and, in either of these events the assignee or assignees, having no power of sale, might request the acting sheriff to act — that is, make sale.

It so happened, it is well to remark here, that P. C. Dickerson died before the trust was executed, and that his only heirs, his wife and son, became his executrix and executor. The heirs and legal representatives were found in the same two persons, and were the legal holders of the note. But we anticipate the complete consideration of the provisions of the trust deed. After the power of sale, just above set out by us, we find that it is further provided, that “\ipon such sale, the said party of the second part, his successor or successors in trust, as the case may be, in fee simple of the property sold, shall execute a deed or deeds to the purchaser or purchasers thereof,” etc.

Who are to make conveyances after sale of the property ? First, the party of the second part, if he be not dead and has not .assigned the note; or, second, his legal representatives and heirs, if the grantee be dead and has not assigned the note; and, third', the assignees of the note. For to these, in the order named, the title to the property passed to these several parties, upon the happening of the contingencies contemplated as possible by the grantors in the trust deed. If there were any possible doubt as to the correctness of this view (and we think there is none), that doubt would be dispelled by the only reasonable interpretation which can be placed upon the terms of the trust deed, which confer the distinct power of executing-conveyances after sale of the property. “Upon such sale, said party of the second part (F. C. Dickerson), his successor or successors in trust, as the case may be, in fee simple, of the property sold, shall execute a deed or deeds to the purchaser or purchasers thereof.”. Who are the successors in trust, in fee simple, of the property sold ? Manifestly, the legal representatives, heirs and assigns of P. C. Dickerson, the persons specifically named in the conveying part of the trust deed. No *797title or interest, by any express terms of the instrument, is vested in the acting sheriff, and title and interest are clearly vested in others. We need not trouble ourselves about naked powers, powers coupled with an interest, or powers necessarily to be exercised in order to the execution of the trust, for the terms of this instrument render useless any discussion of the general law upon those subjects. In addition to this, the very words employed in the paragraph of the trust deed last quoted by us, demonstrate that ‘ ‘ the successor or successors in trust, as the case may be, in fee simple, of the property sold, ’ ’ cannot be applied to the acting sheriff. There can never be two or more acting sheriffs at one and the same time, while there may be two or more legal representatives, heirs or assigns. We do not pursue the matter further, for the question, as it seems to us, is readily solvable by the plain terms of the instrument itself. It is unnecessary to consider in detail the assignments of error on the direct appeal and those presented by the cross appeal. We have considered all of them, but the action of the court throughout is so clearly correct that we content ourselves with this statement.

The decree is affirmed on appeal and cross appeal, and appellant will he taxed with all costs.