Seevers, Ch. J.
1. EQUITABLE jurisdiction: trial de novo practice in the supreme court I. In considering the questions presented and discussed by counsel, we are met at the threshold with the objection that there can be no trial anew in this court, for the reason that this is an action at law to which defendant interposed a defense which formed an equitable issue that was properly heard and tried as such in the court below, and that the only questions this court can determine are those passed on below, which were duly and properly excepted to. As no exceptions were taken on the trial the question presented must be determined. There is no statute declaring to which jurisdiction, law or equity, this action belongs. In fact, all forms of action [271]*271are abolished by the Code, and yet the distinction between law and equity is maintained, if for no other reason that under the constitution the former is triable in this court on error alone, while in the latter there is a trial anew of the whole case. The fact that counsel for the appellant has assigned error is not deemed material. Such fact does not furnish a sufficient reason for our holding that the action is equitable. Moses v. Continental Ins. Co., 40 Iowa, 440. And even if it be true that the Code gives the right of action, this does not solve the question. At common law an action to determine the right or title to real property was not maintainablé unless some one was in possession. This fact, together with the object and intent of the statute, the issues presented and relief asked by both parties, the nature and scope of the questions presented for decision, enable us satisfactorily to determine that this at least is an equitable action, and that the parties are entitled to a trial anew in this court. As we proceed with the discussion of the questions involved, it will be seen that they are all of an equitable nature and character, and this we deem the best test of the character of the action. It is unnecessary to determine, and we do not do so, whether all actions brought under this statute are equitable, but only that this particular case is, and of course all others involving similar issues and questions are, of that character. There is nothing in the views herein expressed that conflicts with Moses v. Continental Ins. Co., supra, for the reason that the abstract states that the court below and counsel on the trial conceded the case should -be tried de novo in this court, and we think the defendant should be permitted to deny this agreement. In our opinion he is estopped by his concession in the court below.
2. trust deed: power. II. It is insisted that the trust deed vested the legal title in the trustees, and that 'the property in dispute upon the execution of the trust belonged to the trustees, hence that it follows they could sell and dispose of it as their own, and the question whether they sold it in accordance with the terms of the trust is not material. In this view we do not concur. The trust deed shows on its face that it was [272]*272given as security for the money specified therein, the payment of which amount at any time previous to a sale of the premises amounted to a satisfaction of the trust deed. The uniform practice in this State upon payment of the amount due is to enter satisfaction on the margin of the record where the instrument is recorded. A re-conveyance by the trustees being deemed unnecessary to vest the full and legal title in the grantor discharged of the trust, it matters not what these instruments may be called, whether deeds of trust or mortgages with a power of sale, or simple mortgages only; the grantor has a right of redemption which cannot be taken away except by a statutory foreclosure, or the same thing eifected in substantial 'accord with the power or law of the trust deed or mortgage. Sargent v. Dillon, 9 Iowa, 407; Newman v. De Lorimer, 19 Iowa, 244; Perry on Trusts, Secs. 227, 602 P, 602 L.
3 _. dl powers o? trustees. III. When the trust was executed the grantor resided in Iowa, the trustees in the District of Columbia, and the heneficiary in the State of Virginia, and it is insisted grantor had the right to presume the trustees, under the discretion vested in them, would sell the property, if such sale became necessary to satisfy the trust, in the county where situate, and that the notice of sale would be similar to those required in judicial sales of real estate. It must be presumed the trustees were mutually selected by the parties, and were satisfactory to them. Hence there were reposed in the trustees large discretionary powers, which should be reasonably executed. It was competent, and is perhaps usual, to more clearly define and limit the discretion of the trustees, and in the exercise of this right it could have been provided that the sale of the premises should take place in the county where the property was situate, and the kind and character of the notice to be given strictly prescribed. But that the presumption can be indulged claimed by counsel is at least doubtful, and which we deem it unnecessary to determine.
[273]*2734. ——: exetrust: fraud, [272]*272IV. In connection with the foregoing, it is Urged that for many reasons the, notice of sale was insufficient, and in this respect that the trustees did not fairly and properly exercise the [273]*273discretionary powers with which they were vested. Without stating or discussing the reasons urged, we turn our attention to the question as to the effect, admit-
ting the point to be well taken. Was the sale absolutely void, or voidable only at the election of the grantor or beneficiar}7? Generally it may be said that all sales or execution of powers of this character are not void, but may be avoided only by the parties interested. Where the power prescribed the notice should be published in the newspapers of Eichmond and New York, and the sale was made without such publication, it was held void. Bigler v. Waller, 14 Wall. 295. And in Ormsby v. Tarascon, 3 Litt., 405, it was held that a sale made for an installment due and one not due was void. And it is undoubtedly true that, as a general rule, where a power directs that a given thing must be done in a particular and specified manner, and there has been a total failure to comply, the execution of the power in such manner is void.
Where a discretion is vested, as in this ease, in trustees, as to the mode and manner the power shall be executed, and there is no testimony showing or tending to show actual fraud, but an honest though mistaken exercise of judgment in the determination of the discretionary power vested in them, we are of opinion, and so hold, that the sale is not absolutely void, but voidable only at the election of the parties interested.
It is proper to say that no actual fraud is claimed to exist, except such as arises from the defective and improper execution of the power vested in the trustees.
Y. If we are correct in the foregoing conclusions, the fact that the lands in three different counties, and included in two and distinct trust deeds, to secure distinct and different debts, but which contained similar and identical powers as to the sale, were sold under the nótice (copied in the statement of facts), does not render the sale absolutely void, but voidable only.
6.-: purchaser with notice. YI.
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Seevers, Ch. J.
1. EQUITABLE jurisdiction: trial de novo practice in the supreme court I. In considering the questions presented and discussed by counsel, we are met at the threshold with the objection that there can be no trial anew in this court, for the reason that this is an action at law to which defendant interposed a defense which formed an equitable issue that was properly heard and tried as such in the court below, and that the only questions this court can determine are those passed on below, which were duly and properly excepted to. As no exceptions were taken on the trial the question presented must be determined. There is no statute declaring to which jurisdiction, law or equity, this action belongs. In fact, all forms of action [271]*271are abolished by the Code, and yet the distinction between law and equity is maintained, if for no other reason that under the constitution the former is triable in this court on error alone, while in the latter there is a trial anew of the whole case. The fact that counsel for the appellant has assigned error is not deemed material. Such fact does not furnish a sufficient reason for our holding that the action is equitable. Moses v. Continental Ins. Co., 40 Iowa, 440. And even if it be true that the Code gives the right of action, this does not solve the question. At common law an action to determine the right or title to real property was not maintainablé unless some one was in possession. This fact, together with the object and intent of the statute, the issues presented and relief asked by both parties, the nature and scope of the questions presented for decision, enable us satisfactorily to determine that this at least is an equitable action, and that the parties are entitled to a trial anew in this court. As we proceed with the discussion of the questions involved, it will be seen that they are all of an equitable nature and character, and this we deem the best test of the character of the action. It is unnecessary to determine, and we do not do so, whether all actions brought under this statute are equitable, but only that this particular case is, and of course all others involving similar issues and questions are, of that character. There is nothing in the views herein expressed that conflicts with Moses v. Continental Ins. Co., supra, for the reason that the abstract states that the court below and counsel on the trial conceded the case should -be tried de novo in this court, and we think the defendant should be permitted to deny this agreement. In our opinion he is estopped by his concession in the court below.
2. trust deed: power. II. It is insisted that the trust deed vested the legal title in the trustees, and that 'the property in dispute upon the execution of the trust belonged to the trustees, hence that it follows they could sell and dispose of it as their own, and the question whether they sold it in accordance with the terms of the trust is not material. In this view we do not concur. The trust deed shows on its face that it was [272]*272given as security for the money specified therein, the payment of which amount at any time previous to a sale of the premises amounted to a satisfaction of the trust deed. The uniform practice in this State upon payment of the amount due is to enter satisfaction on the margin of the record where the instrument is recorded. A re-conveyance by the trustees being deemed unnecessary to vest the full and legal title in the grantor discharged of the trust, it matters not what these instruments may be called, whether deeds of trust or mortgages with a power of sale, or simple mortgages only; the grantor has a right of redemption which cannot be taken away except by a statutory foreclosure, or the same thing eifected in substantial 'accord with the power or law of the trust deed or mortgage. Sargent v. Dillon, 9 Iowa, 407; Newman v. De Lorimer, 19 Iowa, 244; Perry on Trusts, Secs. 227, 602 P, 602 L.
3 _. dl powers o? trustees. III. When the trust was executed the grantor resided in Iowa, the trustees in the District of Columbia, and the heneficiary in the State of Virginia, and it is insisted grantor had the right to presume the trustees, under the discretion vested in them, would sell the property, if such sale became necessary to satisfy the trust, in the county where situate, and that the notice of sale would be similar to those required in judicial sales of real estate. It must be presumed the trustees were mutually selected by the parties, and were satisfactory to them. Hence there were reposed in the trustees large discretionary powers, which should be reasonably executed. It was competent, and is perhaps usual, to more clearly define and limit the discretion of the trustees, and in the exercise of this right it could have been provided that the sale of the premises should take place in the county where the property was situate, and the kind and character of the notice to be given strictly prescribed. But that the presumption can be indulged claimed by counsel is at least doubtful, and which we deem it unnecessary to determine.
[273]*2734. ——: exetrust: fraud, [272]*272IV. In connection with the foregoing, it is Urged that for many reasons the, notice of sale was insufficient, and in this respect that the trustees did not fairly and properly exercise the [273]*273discretionary powers with which they were vested. Without stating or discussing the reasons urged, we turn our attention to the question as to the effect, admit-
ting the point to be well taken. Was the sale absolutely void, or voidable only at the election of the grantor or beneficiar}7? Generally it may be said that all sales or execution of powers of this character are not void, but may be avoided only by the parties interested. Where the power prescribed the notice should be published in the newspapers of Eichmond and New York, and the sale was made without such publication, it was held void. Bigler v. Waller, 14 Wall. 295. And in Ormsby v. Tarascon, 3 Litt., 405, it was held that a sale made for an installment due and one not due was void. And it is undoubtedly true that, as a general rule, where a power directs that a given thing must be done in a particular and specified manner, and there has been a total failure to comply, the execution of the power in such manner is void.
Where a discretion is vested, as in this ease, in trustees, as to the mode and manner the power shall be executed, and there is no testimony showing or tending to show actual fraud, but an honest though mistaken exercise of judgment in the determination of the discretionary power vested in them, we are of opinion, and so hold, that the sale is not absolutely void, but voidable only at the election of the parties interested.
It is proper to say that no actual fraud is claimed to exist, except such as arises from the defective and improper execution of the power vested in the trustees.
Y. If we are correct in the foregoing conclusions, the fact that the lands in three different counties, and included in two and distinct trust deeds, to secure distinct and different debts, but which contained similar and identical powers as to the sale, were sold under the nótice (copied in the statement of facts), does not render the sale absolutely void, but voidable only.
6.-: purchaser with notice. YI. The sale by the trustees and the purchase of the plaintiff was in 1866; the deed conveying the premises to the plaintiff was filed for record on the 19th day of i, .. _ _ _ __ __ beptember, A. 1). 1866, and duly recorded. Mrs. Henn conveyed the premises to the defendant on the 19th day [274]*274of December, -A. D, 1872. At the time of this conveyance the defendant was chargeable with constructive notice of the conveyance to the plaintiff, and also with such notice of the trust deed, which had long previous to that time been duly filed for record and recorded. The defendant then fully knew all the facts and circumstances, and that in all probability he was buying a law-suit. It may be doubtful whether the conveyance to the defendant vested him with the right to avoid the proceedings of the trustees and sale to the plaintiff, and does the conveyance of the premises amount to an assignment of Mrs. Henn’s right to have the sale set aside? As we have said, this is regarded as doubtful, but it is clear that by the conveyance the defendant obtained no other or better rights than those of Mrs. Henn.
7___sale under. VII. It does not appear that Mrs. Henn made any effort to pay taxes on the lands, or that she made any inquiry as to the amount claimed to be due, or, in fact, paid any attention to the deeds of trust or rights claimed thereunder until long after the sale and conveyance to the plaintiff. She, in fact, never heard of the sale and conveyance to the plaintiff until three years after the deed was recorded. Nor does she then make any inquiry or effort to redeem or negotiate therefor. In fact, she did nothing until the conveyance of the premises to the defendant in 1872. In the meantime the lands had enhanced in value and the original indebtedness had become barred by the statute of limitations, Even after all this Mrs. Henn, and the defendant as her grantee, made no effort to redeem the property or to pay taxes, but on the contrary permitted the plaintiff to pay the taxes from year to year, and then, when this action is brought, the defendant makes no effort or even offers to pay the taxes or any portion of the original indebtedness. It would be great injustice . (;0 permit Mrs. Henn or the defendant to have and possess these lands without paying the amount due on the debt secured by the trust deed, and also the taxes paid to protect and preserve the title. By the purchase at the sale the plaintiff became subrogated to all the rights of the beneficiary to the extent of the amount of the purchase money and the [275]*275taxes subsequently paid by him, and defendant should have tendered or offered to pay that amount at least. The note secured by the deed of trust was dated in May, A. D. 1858, and became due in May, A. D. 1861. It, therefore, was not barred by the statute of limitations until May, A. D. 1871, the sale and conveyance to plaintiff having been made and the latter filed for record in 1866, and of which Mrs. ITenn was bound to take notice. A period of five years, it will be seen, intervened between filing the conveyance for record until the bar of the statute became complete, nor did it so become complete until two years after Mrs. Henn had actual notice of such conveyance to the plaintiff. The defendant impugns and seeks in a court of equity to set aside the plaintiff’s title, totally ignoring the time-honored and universal rule in courts of equity that he who asks equity must do equity.
It is exceedingly doubtful, to say the least, whether the power exists in any court to charge these lands with the payment of a debt which is barred by the statute of limitations. But the question need not be definitely determined. The plaintiff is not required to take- the chances of such litigation.
The length of this opinion forbids any further discussion of the questions involved. The court below erred in setting aside the sale and conveyance to the plaintiff. A decree will be entered here in accordance with the prayer of the petition, or at the option of the plaintiff the cause will be remanded to the court below with directions to enter a decree in accordance with this decision.
Bevebsed.