Glenn v. Allison

Robiksos, J., delivered the opinion of the Court. As a general rule it is quite well settled, that one will be held personally liable on a covenant made by him as trustee, for the obvious reason, that having no power to bind the trust estate, the covenantee would otherwise be without remedy; and it is but fair to presume, therefore, that the covenant was made and accepted on the individual liability of the covenantor. The additional word “trustee” in such cases, is construed merely as a word of description, showing the capacity in which the covenantor acted. Sumner vs. Wilson, 8 Mass., 162 ; Duvall vs. Craig, 2 Wheaton, 56 ; Coe vs. Talcott, 5 Day, 92 ; Godley vs. Taylor, 3 Devereux, 178; Aven vs. Beckom, 11 Georgia, 1; Graves vs. Mattingly, 6 Bushrod, 361.

It is equally clear on the other hand, tfiat although one may covenant as trustee, he may limit and qualify fhe character in which he is to be held answerable; and where it plainly appears from the face of the instrument, that he did not mean to bind himself personally, Courts will construe the covenant according to the plainly expressed intention of the parties, and this too, in cases where the covenantor liad no right to bind himself in a fiduciary character. If the plaintiff be without remedy in such cases Re Ras no one to Ríame Rut Rimself, in accepting a covenant of such a character. He certainly had no right to rely upon the individual liability of the covenantor. Thus in Thayer vs. Wendell, 1 Gallison Rep., 37, where one covenanted in his capacity as executor and not othertoise, it was held that lie was not personally liable, even though the plaintiff had no remedy against him in his representative capacity.

Judge Story said, “How the clear exposition of the contract of the defendant is,—“'1 covenant in my capacity as executor, and as far as I can legally bind the estate of Erving, but ⁵³⁰ I- hereby expressly exclude myself from all personal liability in any event.’ Now it is quite too plain for argument, that if the words had been, as I have stated, there would have been no personal remedy. Can there be, where the words used require precisely the same exposition?” And so in the well considered case of Day vs. Brown, 2 Ohio, 345, where the grantor covenanted, that he would warrant and' defend the premises “as execiitors are bound by law to do," the Court, whilst conceding the general rule to be as we have stated in a former part of this opinion, said that the warranty must be construed according to the intention of the parties, and that the grantor meant only to warrant the title so far as executors could do so by law, and that he did not mean to bind himself personally. The cases of Manafee vs. Morrison, 1 Dana, 208 , and Nicholas vs. Jones, 3 A. K. Marshall, 385, are to the same effect. See also Rawle on Covenants for Title, 51 note.

The suit in this case is on a covenant in a mortgage made by John Glenn, trustee of Margaret Armstrong. The mortgage recites, that whereas, the said John Glenn, trustee,