Williams v. Mabee

If the concurrence of Peter Simmons, the trustee, in the conveyance made to Mabee in 1819, expressed at the foot of that deed, amounted to a conveyance by him of the legal estate, the consequences of such conveyance would be the same against a new trustee as against Simmons. If, by reason of such concurrence, Simmons could not maintain ejectment, a new trustee could not; and in this view the appointment of a new trustee would be useless.

If there is any equity, at this late day, in any of the cestuis, it must arise from Mabee’s having knowledge of the trust when he took the conveyance of 1819. But by this knowledge Mabee became trustee; and the trust would follow to his grantees, as far as they, respectively, had notice of the trust, or are chargeable with notice; and no further. In this view, also, I see no good reason for the appointment of a new trustee.

If the said concurrence of Simmons, the trustee, expressed as aforesaid, did not convey the legal estate out of him, yet Mabee is protected so far as respects the cestuis que trust who were of age and joined in the said conveyance to him.

In reference to the rest of the cestuis que trust, or all of them but one, a fact appears in the testimony of a witness residing in *508Ohio, taken under a commission, which does not appear in the pleadings, not being known, as I suppose, to the defendants until the return of the commission, and which should have an influence in favor of the defendants. It is, that the cestuis que trust after they were all of age, or their representatives, sold and conveyed their interest in the Ohio farm which was conveyed by Mabee in exchange for the lands in question in this suit. This testimony speaks as to all but one; and the defendants think they can show that that one also joined in the conveyance of the Ohio farm.

I thi-nk that this act should, after so great a lapse of time, under a proper state of pleadings, be considered a confirmation of the deed to Mabee by all the cestuis que trust who joined in the conveyance of the Ohio farm. And I am willing, under the circumstances, that such course be taken in the cause, on the part of the defendants, as will give them the benefit of this fact.

If, under these views, it is thought, on the part of the complainants, that either of the cestuis que trust is in a position to call for an execution of the trust so far as his or her interest is concerned, I have no objection to retain the bill. But these suggestions are made without prejudice, and without intending to give any decided conviction in favor of any cestui que trust though he or she may not have joined in the conveyance of the Ohio farm.

A new trustee will not now be appointed.