Funk v. Newcomer

Le Grand, C. J., delivered the opinion of this court. The bill of the appellant was filed in this cause for the purpose of obtaining a partition of certain property, alleged to be held in common with the appellee, and, also, for an account of profits, expenditures, &c. The case, as made by the bill, may be thus stated: — A certain Andrew Newcomer, of Washington county, being indebted to various persons in the year 1822, made a deed of trust of his property to certain parties, which provided for the payment of his debts, and reserving to the grantor any residue which might remain, for life, and then to go in such direction as he might indicate by his last will, and in default of his making a will disposing of it, then to his heirs. The trustees under this deed, after executing the trust in part, sold the property to the appellant and appellee, they taking upon themselves the payment of the debts.

The appellant claims that the trustees, under the deed of 1822, had the right and power, under its provisions, to make such a disposition of the property ³¹⁵ mentioned in it as they did by the deed of 1825. He claims to have advanced most of the money for the payment of the debts. The wife of the appellant, and the appellee, are the only heirs at law of Andrew Newcomer. In opposition to the pretensions of the appellant, the appellee insists, it was never the design, by the deed of 1825, to convey an absolute title to the grantees in it, but merely to continue the trust created by the deed of 1822, and that when the-debts of Andrew Newcomer should be paid and discharged, whatever might remain should belong to him.

The decision of the case must depend upon the language of the instruments themselves. The deed of 1825 is an absolute deed of bargain and sale to the appellant and appellee, “their heirs and assignsSo far as the face of the deed is concerned there can be no doubt of its true character; the real question involved in the case arises out of the deed of 1822, and that is, did it confer on the trustees named in it the power to convey, as they did, by the deed of 1825? This must be answered by the language of the deed. The parts of it which are material to the present inquiry may be thus given: after specifying certain debts due and owing by Andrew Newcomer, it conveys the property to the trustees, they “to hold, all and singular, the real estate above described, with its appurtenances, together with all the personal estate or property, as likewise above set forth, to them, the said Henry Newcomer, Henry Landis and John Witmer, and their heirs, and the survivor of them, and the heirs of such survivor, forever, in trust, nevertheless, that they, the said Henry Newcomer, Henry Landis and John Witmer, and the survivor or survivors of them, and the heirs of such survivor, may sell, convey and dispose of, all or any part or portion of the real estate, together with the personal property as in this deed of trust set out and described, either at public or private sale for cash or on credit, as they, the said Henry Ne/wcomer, Henry Landis and John Witmer, may judge most advantageous and expedient, and the proceeds of the sales to apply, first, to the discharge of all the several debts and sums of money due and owing by him, the said Andrew Newcomer,” &c. ³¹⁶ This deed certainly authorises the sale, by the trustees, “of all or any part or portion of the real estate, together ivith the personalproperty.” And this being so, there can be no doubt the deed of 1825 was but a proper exercise of the power conferred by that of 1822, unless it was executed with a fraudulent design, or was the result of a fraud practiced by both, or one, of the grantees in it, on the grantors and on Andrew Newcomer.

The deed of 1822 authorised a sale of “all or any part” of the property, and on such terms as the trustees deemed the most advantageous, “either for cash or on credit.” It must be recollected that the rights of none of the creditors of Andrew Newcomer are involved in this controversy. If he had any, at the time of the filing of the bill in this case, the deed of 1822, as to them, would be void under the decisions of this court. The controversy here is between the heir at la\y of Andrew Newcomer and John Funk, both being grantees in the deed of 1825, We are of opinion, that Ohristiap Newcomer is estopped from denying the title conveyed by the deed of 1825. In support of this opinion it is but necessary to state a few principles familiar to the profession.

A party is estopped from denying a