Boone's v. Clarke

3 F. Cas. 878, 3 D.C. 389, 3 Cranch 389

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1828
• Status: Published

Opinion

Ceanch, C. J.,

after stating the case, delivered the following opinion, in which the other judges concurred.

From the circumstances thus appearing in evidence in this cause, a strong presumption arises that the debts mentioned in the deed of 1801 were fully paid off before the death of Francis Boone, and that Mr. Bowie had no authority, as trustee, to sell the property.

The power of attorney contained in the deed became invalid by the death of F. Boone, except so far as the interest of the trustees was coupled with the power; and if their interest had been extinguished, the power did not survive. It does not appear that Alexius Boone, the co-trustee, was dead at the date of the deed from Mr. Bowie to Mr. Clarke. The trust was joint, and could not be executed by one. There was no provision in the deed .that the trust should survive. Upon the death of one, the trust failed. After all the debts were paid, the trustees had only a power to transfer the legal estate to F. Boone, or his legal representatives, that is, his executors or administrators. One trustee alone could do no valid act. He could not divest himself of any part of the legal estate, nor transfer the personal trust. The trust was not only personal, but jointly personal. Neither could act without the other.

I am of opinion, therefore, that the bill of sale from Robert Bowie to Walter Clarke was absolutely void; and' the presumption being strong that the debts secured by the deed of 1801 were paid off in the lifetime of Francis Boone, I think the plaintiff has a right, under the deed of 1814, to pursue the property in the hands of the defendants.

Afterwards, at the same term, on the 2d of April, 1829, Mr. C. G. Lee, for the defendant, moved for a rehearing, and the Court agreed to receive any further notes of argument on thé part of the defendant.

Mr. Lee submitted his notes, which were filed with the papers in the cause; Mr. Jones did not send any notes.

On the 30th of July, 1829, Cranch, C. J., said, —

Upon reconsidering this case, and Mr. Lee’s notes, I am still of the same opinion as before. The defendant Clarke acquired no title whatever from Bowie, and is, therefore, not such a purchaser for valuable consideration, without notice, as can be protected by that principle. The plaintiff is only pursuing the property in the hands of the defendant, who can claim nothing but a naked possession against a mortgagee for a valuable consideration. And of that opinion was the Court.