Spessard v. Bohrer

9 Gill 261

• Court: Court of Appeals of Maryland
• Decided: July 1, 1850
• Status: Published

Opinion

Magruder, J.

delivered the opinion of this court.

The appellees instituted their action to Washington county court to recover several parcels of land which they claim ed[as the heirs of Jacob Rohrer. The defendants also attempted to derive title from the same person, who, it is admitted was seized in fee of the lands until he executed a deed to Joseph Graff, 14 November, 1817.

The case being submitted to the court, upon a case stated, judgment was entered for the plaintiff, and from that judgment this appeal is taken.

The judgment must be affirmed, unless the deed to Graff authorized him to sell the fee-simple, which was sold and conveyed by him. Both Rohrer and Graff died before the institution of this suit.

Did the deed give Graff authority to sell the fee? It conveys the land to him, without adding “ and his heirs,” and if it had been designed to convey the absolute property, no doubt it would not have been a conveyance of the fee-simple.

But the deed of Rohrer was executed by a man involved in debt, and is executed by him in order that Graff might make sale of the land, and discharge his (the grantor’s) debts. It is a conveyance of all his estate and all his right and title thereto, with power to sell the same, and pay tiiose debts. If a deed of this description conveys land to the trustee and his heirs, we are told (4 Kent, 310) that the legal estate is in him so long as the “execution of the trusts requires it, and no longer.” So “an assignment or conveyance of an interest in trust will carry a fee, without words of limitation when the intent is manifest.” 4 Kent, 304.

The trustee, it is believed, had the power to dispose of the fee, and also “ to pass the legal estate. ”

The estate conveyed to Graff was for the benefit of the grantor’s creditors, and his creditors could have compelled a sale of so much of the property as was necessary, in order to pay all their debts. If be died, or was discharged as trustee, another could have been appointed in his place, and the chancellor could have empowered and have directed him to sell as much of the estate as would be sulficient to pay them.

A testator may direct a sale of his real estate for such a purpose, without naming any person by whom the sale is to be made, and the person who is empowered to make the sale, is authorized to sell and convey the fee. So the executor if authorized, may make the sale, although no fee is vested in him. ££lt is not any estate or interest of the grantee in the deed of trust which is to pay the debts; it is the estate of the grantor from whom the title is derived.”

It cannot be doubted in this case that a sale of the fee was necessary in order to execute the trust, and that the deed was executed in order to give the grantee power to sell it. The trustee is to sell, pay the debts, &c., and the surplus whether lands, bonds, &c., to deliver to said Jacob, if alive, but if he die before the trusts are executed, then that surplus to be delivered to the heirs of said Jacob, or as said Jacob may before his decease direct by will, or other writing according to law.

JüGDMENT REVERSED WITH COSTS,