Ratcliffe v. Sangston

Cochran, J., delivered the opinion of this court. This suit was instituted by Frederick E. Ratcliffe, to recover certain articles of merchandise sold and delivered by him to the firm of Yerby, Tebbs & Yerby, upon representations alleged to have been false and fraudulent, made by George W. Yerby, one of its members, and which were assigned by that firm, in trust for the benefit of its creditors, to the appellees. Two exceptions are presented in the record, the first of which was taken to the competency of George W. Yerby, who was examined as a witness by the appellees. The disqualifying interests, presumed from a possible residue of the trust estate after the payment of creditors, and resulting from the warranty implied by the deed of assignment, we think, were legally divested and extinguished by the mutual releases executed by him and the appellees.

The interest he was supposed to have adverse to the appellant, was balanced by his primary liability for the goods in controversy, and, for that reason, could not affect his competency. His interest in having the property assigned, applied to the payment of creditors according to the preferences expressed in the deed, as well as that to be presumed, in others respects, from his relations to the parties in the case, might have affected his credibility, but not his competency. At the time he was offered as a witness, he does not appear to have had any inter ³⁸⁹ esí sufficient to have rendered him incompetent, and, in our opinion, his evidence was properly admitted. The other exception, taken to the rejection of the appellant’s prayers, and to the instruction given by the court, embraces several propositions, a separate consideration of which becomes necessary.

The instruction asked in the first prayer, that the deed to the appellees did not authorise any number less than all of them to take possession of the property conveyed, and execute the trusts declared, we think was properly refused. The deed expressly provides, that the appellees, “their executors, administrators and assigns, the survivors or survivor of them, his or their executors, administrators and assigns, or a majority of them,” should forthwith take possession of the property described, <fcc., and, by a reasonable construction, implies, if it does not expressly declare, the power and authority of a majority of the appellees to execute its provisions. Where a conveyance of property is made to several persons as trustees and a part of them disclaim the trust, the others “will take not only the entire legal estate, but also all the power and authority requisite for the administration of the trust,” unless the intention, that all the persons named as trustees shall act, be expressed or clearly implied from the conveyance. If, in such a case, the grantor use expressions showing that the execution of the trust, by any number less than all of the grantees named, was contemplated, the disclaimer of the trust by any one of them will not invalidate the deed, nor impair the power or authority of the others to execute the trusts declared.

Bill on Trustees, 226, and authorities there cited. The determination of the question, whether the appellee, Sangston, divested himself of the trust by the instrument executed for that purpose, is immaterial, as, in either case, the terms used in the deed, or the evidence of Hurst, showing that Sangston acted under it until this suit was instituted, fully justified the refusal of the instruction prayed. The instructions sought by the second and fifth prayers, we ³⁹⁰ think, were