Pritchett v. Jackson

On October twenty-first, 1904, John C. McElwee, of Baltimore City, executed a deed of trust whereby he conveyed all of his property to J. H. Bascom Jackson upon certain trusts which need not all be mentioned. The trustee accepted the trust and gave bond and upon his petition Circuit Court No. 2, of Baltimore City, assumed jurisdiction over the- trusts. Later on the trustee obtained leave to sell a portion of the ⁶⁹⁷ trust estate at private sale and thereafter he reported to the Court the sale which he had made. The purchaser filed objections to the ratification’ of the sale.

Those objections were overruled and the sale was finally ratified and from the order of ratification this appeal was takeu. The objections which the purchaser filed were two: First, that the trustee has not power under the deed of trust to convey a good and marketable legal title to the property sold. Second, that the power given to the trustee under the deed of trust is vague and uncertain. As both of these objections are based upon the deed of trust, it will be necessary to turn to it for the purpose of ascertaining its scope and the extent of the powers vested in the trustee by its provisions.

By the deed the grantor conveyed and assigned all his property and estate, real, personal and mixed to the trustee, to have and to hold every part thereof in confidence and trust for certain specified uses and purposes, amongst which were these: “to sell, exchange, convey and in any manner to dispose of, charge or manage, subject to his discretion, any and all of the estate or property now belonging to” the grantor, “or which may come into his (the trustee’s) hands under and by virtue of this deed, so that no purchaser shall be required to see to the application of the purchase-money; to make all necessary deeds, conveyances and transfers to carry out said powers, &c." If the deed had contained no other clauses it is not suggested or supposed that the trustee would be without authority to sell and convey the property now involved in this proceeding; but the deed went on to provide in its concluding paragraphs which are not even parts of the habendum or tenendum but are wholly independent of both, that “I, the said John C. McElwee, do hereby * * * expressly reserve the right to dispose of, by last will and testament, all the property herein conveyed and all property which I may now have, or which I may hereafter have, or which may hereafter come into the hands of the said J. H. Bascon Jackson.” “And this deed is not intended to affect apy disposition of the property hereby conveyed which may have been made in any ⁶⁹⁸ will heretofore executed, or which may hereafter be executed by me, the said John C. McElwee.” Itis obvious, at