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Lyons, Meredith and John Howard, for the appellants.

Jones & Bouldin and Daniel, for the appellee.

was engaged in the erection of said im- | John Græme, jr., applied for, and obtained provements, and was advancing the funds an appeal to this court. for that purpose. And they insist that under these circumstances it was the duty of the plaintiff to have enquired and ascertained the facts, if they were not known to him, and to have given notice of his alleged lien and claim upon the property, to the person engaged in making such improvements; and not making such enquiry and giving such notice, but standing by and suppressing the fact of his interest in the property, he will be regarded in law as having fraudulently concealed the same, and he will be postponed in the enforcement of his lien to these respondents, to the extent of the value of the improvements erected upon said lot by them.

They further say, that before they had any notice or suspicion as to the lien of the plaintiffs, they had expended upon this and the adjoining property about $40,000; that it was in November 1865 when they received this information, when John Græme was about to enter into the agreement with these respondents, which was to be duly recorded in order to give them a lien upon the property; and the reason why this had not been done at the commencement of the work, was that the office of the Hustings court of the city was then in the possession of the Military authorities of the United States; and respondents were informed and believed that no agreement could then be so recorded as to give them a valid lien on the property. Mrs. Hunter in her own right and as executrix of James Hunter deceased, filed her bill in the same court against Cullen, the Adams, John Græme and the trustees 274 *in Cullen's deed, in which she insists upon the illegality of the sale made by Mr. Myers, and also on the conduct of Cullen and his trustees in standing by and not giving notice of his lien, as giving the Adams preference over him.

The depositions of Cullen and of S. H. Adams were taken. That of Cullen, so far as it refers to the last point, is stated by Judge Moncure in his opinion, for which see other facts referred to by him. That of Adams is in accord with his answer.

MONCURE, P., delivered the opinion of the court.

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The two main questions arising in this case are, first: whether the sale made by Gustavus A. Myers, one of *the two trustees named in the deed of trust of the 15th day of February 1860, from John Græme to said Myers and John Græme, jr., for the benefit of Patrick Cullen, was a valid sale? And second: whether Cullen is entitled to have full satisfaction of his debt secured by that deed, out of the proceeds of that sale, before S. H. & J. F. Adams, the builders of the house which was upon the lot of ground sold at the time of the sale, will be entitled to any part of the said proceeds on account of the debt due to them by said Græme for said building? These two questions, substantially, in the above order, were considered by the learned judge of the court below, in the opinion delivered by him on pronouncing the decree appealed from in this case, and were discussed by the able counsel in their argument of the case before this court. We will, therefore, consider the same questions, and in the same order, in our examination of the case. Other questions arise in the case which were considered in the court below, and were argued by counsel in this court, and which we will also have to consider; but they are subordinate and collateral to the main questions aforesaid. Proceeding, then, to consider those two main questions, we will enquire:

First-Was the sale made by Myers, as aforesaid, a valid sale?

The law in regard to the power of one of two or more trustees, named in the instrument creating the trust, to execute the trust severally, is very plain, and is familiar to us all. Where two or more persons are authorized to execute a trust or power jointly, of course they are not authorized to execute it severally, unless such authority be also given by the instrument creating the trust or power. That instrument being the only source of the authority, of course there can be no authority which does not flow from

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On the 14th day of February 1871 the causes came on to be heard together, when the court dismissed Græme's bill with costs; and held that Cullen was entitled as against the Adams to specific performance of their contract of purchase under the sale by the trustee Myers, which sale was confirmed; and that he was entitled to have, out of the purchase money, satisfaction of the debts due and to become due from Græme to Cullen, and secured by the deed aforesaid, only, without abatement, because of the improve-eral ments put upon the lot by Græme since the said deed of trust was executed to secure the same; and that the Messrs. Adams must be postponed to said Cullen. It was therefore decreed accordingly; interest being charged upon all the writings obligatory, from the time they fell due, whether given for the principal or for the interest. From this decree Mary Hunter, John Græme and

that source. Lewin on Trusts, 266, *marg. ; 1 Lom. Dig. 249. A trust or power given to two or more, is joint unless words be added making it sevalso. But while one or two or more joint trustees cannot execute the trust severally, it is perfectly competent for the author of the trust to empower the trustees to act severally, as well as jointly; and in that case, the act of one of the trustees, in pursuance of the trust, is just as valid as if he only had been appointed to execute it. The law on this branch of the subject is correctly laid down in the opinion of the

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sale on being required by the trust creditor to do so, notwithstanding *the refusal of the other trustee to join in making it? How then can it be said that by joining in the first advertisement of sale, Græme, jr., accepted the trust, and thereby put it out of the power of Myers, afterwards, to make the sale severally, though Græme, jr., was expressly requested and expressly refused to join in making it? Did Græme, jr.'s acceptance of the trust, and his refusal afterwards to join in making a sale, annul that portion of the deed which expressly requires either of the trustees to make the sale, on being required by the trust creditor to do so? It may be true that in the selection of the trustee, the trust debtor and creditor may have been influenced, to some extent, by the consideration, that one of them was the son of the debtor, and the other the friend, if not counsel of the creditor; (though it seems he was only such counsel in drawing the deed, and not the general counsel;) but it was certainly not intended that the trustees should only act together, and not severally; for the deed expressly provides otherwise. The parties were friendly at the time of the execution of the deed, and did not anticipate any difficulty in the future. But the debts to be secured had a long time to run, covering a period of fifteen years; and the parties could not know what would turn up in the meantime. It was a prudent precaution, therefore, in the trust creditor to stipulate in the deed for a right to require the trustees or either of them to make a sale, in the event of a default by the debtor in making his payments. Before all the debts became payable, the parties, debtor and creditor, might become inimical to each other, (as turned out to be the case,) and the trustee, who is a son of the debtor, might naturally take sides with his father, and be biased in his favor; and might think it improper to join in making a sale,

court below and the authority therein cited. | acceptance of the trust which the trustees By the terms of the instrument creating the could possibly have given; and yet, could trust, its author "may confide the execution it have been contended in that case, that of the trust to one person alone, or to two one of the trustees could not have made the or more jointly, or to two or more jointly and severally; and in the latter case, one of the trustees alone, or a less number than the whole, may execute the trust where the deed provides that less than the whole number may act. 1 Lom. Dig., marg. p. 325. When there are several trustees, and there is no provision in the deed that a less number than the whole may act, all must act; because it is an office of personal confidence, (Lewin 262,) and in such case the grantor has not confided in any one, or in any number less than the whole. But, when the deed does provide that a less number may act, it is a clear indication that the grantor has the same confidence in the lesser number that he has in the whole; and it follows, that in such case it is competent for a less number than the whole to execute the trust." The case of Taylor & ux. v. Dickinson, &c., 15 Iowa R., 483, cited by one of the counsel for the appellee Cullen, bears directly on this branch of the case, and seems to be a correct decision. Then, the question in regard to the power of Myers to act severally in making the sale, is one of construction merely. Does the deed of trust confer such power? 277 *The deed was executed to secure the purchase money, or part of the purchase money, of the lot of ground thereby conveyed, which it seems, on the same day had been sold and conveyed by Cullen to Græme. The amount secured by the deed was $22,200, for which Græme executed and delivered to Cullen thirty writings obligatory, for different sums of money, payable at different times, between the 15th day of February 1860, the date of the deed, and the 15th day of February 1875, inclusive, according to schedule annexed to the deed. The deed provides, that in the event that default shall be made in the payment of either of the above mentioned writings obligatory as they become due and payable, then the trustees or either of them, on being required so to do, by the said Patrick and therefore refuse to do so. In such Cullen, his executors, administrators or an event, it was *important to the assigns, shall sell the property hereby concreditor to have the right to require veyed." Certainly language could not be the other trustee to make the sale, and the plainer, nor more unlimited and uncondi- right was accordingly secured to him by tional, than is the language here used to the deed. We do not mean to say that this empower the trustees, severally as well as was the only motive for inserting that projointly, to make the sale, on being required vision in the deed. On the contrary, there so to do as aforesaid. The power thus given were many other motives for its insertion. to either of the trustees to make the sale, But this may have been one of the motives, is not a conditional power to make it only and was a reasonable one; and at all events, in the event of the death of the other trus- such a state of things presents a case in tee, or of his non-residence in the State, or which either of the trustees may be required of his refusal to accept the trust, but it is to make a sale, notwithstanding the refusal general and unconditional; just as much of the other trustee to join in making it, So, as is the power given to them to act and even against his protest, if such sale jointly in the matter. How then can it be would be otherwise proper. We do not mean said, that Myers had not power to make the to say that one of the trustees might have sale severally in this case? Suppose both been required to make the sale alone, if the of the trustees had signed the deed of trust, other had been willing to join him in mak(though neither of them did,) that would ing it. It is unnecessary to decide that have been the most express and binding | question in this case, and we therefore ex

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press no opinion upon it. But we do mean | ment of the trust debt due to Cullen, or to to say, that if one refuse, though requested the payment of the debt due to the Adams to join in making a sale, no matter what for said improvements; for the security of may be the motive of such refusal, the other which latter debt a subsequent deed of trust has power to make it; and if it be otherwise on the said property had been executed and proper, the sale will be valid. In this case recorded. The appellants contend that this Græme, jr., was requested to join in mak- controversy, in itself, (however the right ing the sale; and he did join in the first may be,) was such a cloud over the title as advertisement; but he refused to join in made it improper in the trustee to make the the second. After being made trustee in sale until the said cloud was removed; and the deed for the benefit of Cullen, he ac- that the necessary effect of making the sale, cepted another trust upon the same property under such a cloud, was to produce a sacrifor the benefit of S. H. and J. F. Adams. fice of the property. We will now enquire These trusts were, in his opinion, con- as to the nature of this supposed cloud, and flicting, and he could not decide between as to its probable effect upon the sale. them, and what right," enquires the peti- The question now to be considered is, not tion, "had Cullen, or Myers either, to re- how the proceeds of the sale of the property quire him to assume the grave responsibility ought to be applied—that will be the subject of so doing?" This may have been a very of our next enquiry-but what was the good reason for his refusing to join in nature and state of the controversy on the making the sale under the deed for the ben- subject at the time of the sale, if controefit of Cullen; but it was at least as good a versy it could be called; and whether it inreason, why Myers should have power to juriously affected the sale. make the sale alone, if such a sale would otherwise be proper.

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*Then we proceed to enquire, whether the sale was otherwise proper; in other words, whether it is valid, notwithstanding the fact that both trustees did not join in making it?

It is manifest, we think, that when the agreement of the 18th of November 1865, between Græme, James Hunter and the Adams, providing for a lien to be given to the Adams on the property therein mentioned, to secure the payment of the cost of the improvements, which had been and were expected to be put upon the said property, all of the parties to said agreement believed that Cullen would have a prior lien to that of the Adams, not only on the lot of ground conveyed by the deed of trust for Cullen's benefit, but also on the improvements which had been, or might be, put upon that ground, as aforesaid. And this belief, no doubt, continued down to the time of the advertisement of the property for sale by Græme, jr., and Myers, 282 the two *trustees under the said deed of trust. But afterwards a change seems to have occurred in the views of the said parties. That change in the views of Græme, sr., manifested itself by the bill which, on the third or fourth of March 1868, just three or four days before the day fixed by the trustees for the sale of the property, was presented to the Judge of the Circuit court of the City of Richmond, praying for an injunction of the said sale, upon the ground of the alleged, or supposed, prior

The sale was advertised and made in strict pursuance of the terms prescribed by the deed of trust. There was no uncertainty as to the amount due on account of the trust debt at the time of the sale. The debtor had made default in the payment of the instalment which became payable on the 15th of February 1864, and of all the semiannual instalments which became payable afterwards, down to the time of the sale on the 22d of May, 1868, and had paid nothing on account of the principal or interest of the debt during all that period. The title to the property was perfect, and there was no cloud whatever over it, at least at the time of the execution of the deed of trust. The deed was duly recorded a few days after its date. The creditor was prevented by the stay law from having the deed of trust enforced by a sale of the property, until after it was decided by this court in Taylor v. Stearns, &c., 18 Gratt. 244, that so much of that law as suspended the enforcement of deed of trust liens was unconstitutional; lien of the Adams to that of Cullen, on which decision was made in 1868, February 19. Shortly thereafter, the sale was advertised and made as aforesaid. It does not appear, and is not pretended, that the trustee did not use every means in his power to make the property produce the highest possible price at the sale. On what ground, then, can it be, that the said sale is invalid? The ground on which the appellants insist that it is invalid is, that at the time it was made there was a pending controversy in regard to the improvements which had been constructed upon the said property by S. H. and J. F. Adams; that is to say, whether the proceeds *which might arise from the said sale, on account of the said improvements, would be properly applicable, in the first place, to the pay

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the improvements aforesaid, and of the in-
jurious effects of making a sale of the prop-
erty under such a supposed cloud. The
injunction prayed for, was refused by the
Judge of the Circuit court on the 4th of
March 1868, but was granted by a judge of
this court on the 10th of March 1868, and
the sale advertised to be made on the 7th
day of the same month was not made.
Cullen filed his answer to the bill, and gave
notice to Græme that he would, on the 28th
of the same month, move the judge of the
said Circuit court to dissolve the injunction:
which motion was accordingly made.
on the 11th day of April 1868, to which day
the said motion was continued by consent
of parties, it came on to be heard by the
said judge in vacation, on the original bill,

And

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285

the answers of the defendants Cullen, | sole devisee of James Hunter, "not to unite Myers, and S. H. & J. F. Adams to the said in such a sale; that she would regard the original bill, with general replication to same as a null and void act, so far as it said answers, the answer of the defendant affected her rights; and that she would hold Mary Hunter on that day filed, the amended him personally responsible for any damage and supplemented bill (making said Mary that might accrue to her by reason of his Hunter a defendant to the suit,) the exhibits uniting in or giving any countenance to filed and the depositions of witnesses, and such a sale." Myers, however, made the was argued by counsel: On consideration sale, according to his advertisement; and whereof, the said Judge in vacation ad- S. H. & J. F. Adams, being the highest judged, ordered and decreed that the said bidders, became the purchasers at the price injunction should be, and the same was of twenty thousand dollars. It does not thereby dissolved. And on the motion of appear that that was not an adequate price the plaintiff by counsel,, who represented for the property at that time, on the terms that he desired and intended to present on which it was sold; which were the terms *a petition for an appeal from the said prescribed by the deed of trust. Real estate decree, it was further ordered that the in Richmond had considerably fallen in said decree be suspended for thirty days market value, since 1865 and '6, and it was from its date, to enable the plaintiff to uncertain whether there would not be a still present such petition. No such petition further fall therein. The property might ever was presented; or, at all events, no have produced more if sold on different such appeal ever was obtained. After the terms; or rather if a less amount of cash said period of thirty days had expired, to had been required; but it certainly does not wit: on the 12th of May 1868, Myers, as appear, nor is there any evidence in the sole acting trustee, again advertised the case, that more could have been gotten for property for sale, in pursuance of the terms it on the same terms. The trustee properly prescribed by the deed of trust, on the 22d sold it on the terms prescribed by the deed, day of the same month. Before proceeding which he had no right to vary. The amount to act as sole trustee in advertising and of the cash payment required was quite making the sale, Myers, on the 11th of May large, but it was made so by the long con1868, sent the advertisement to his co-trus-tinued default of the debtor, which accumtee, Græme, jr., with a note requesting him ulated the amount in arrear. But still, the to sign it. The latter replied by a note terms were favorable in regard to the dated on the same day, in which he said: portion of the purchase money *reas co-trustee alike in the deed from John quired to meet the instalments of the Græme, to secure Messrs. S. H. and J. F. debt which had not become payable, and Adams, and in the deed from said Græme which were to run to February 1875, nearly to secure Dr. Cullen, both of which trusts seven years after the sale. Then was this I have accepted, I am advised by counsel, sale valid, under these circumstances? that under the circumstances, it would not We are of opinion it was. There was no be proper or safe in me to unite with you cloud over the title at the time of the sale. in the sale of the house erected on the lot The only controversy which then existed, in question by Messrs. Adams, to pay the if any, was as to the application of the debt due to Dr. Cullen, or to consent to such proceeds of the sale. The injunction of the sale by you, my co-trustee, in said deed to sale which had been granted by a judge of secure Cullen. I therefore notify you that I this court after having been refused by the can not consent to the sale proposed to be Judge of the Circuit court, had been dismade, the advertisement of which was sub- solved by the latter, and no appeal had been mitted to me to-day, and shall decline to taken from the order of dissolution. There do any act to divest the title in me, in part, was then no impediment in the way of a under said deed, in order to effectuate the sale, and no reason for believing that a said proposed sale. Any epxenses, costs, fair sale could not be made, at as full a or damages that may be incurred by reason price as could be obtained for such property, of an attempt to make such sale by you, at that time and on the terms prescribed by will of course be assumed by yourself, and the deed. There had been no decree dison your own responsibility; and such a sale missing the injunction suit after the inwould be regarded by me, co-trustee in said junction was dissolved, and it was a pendseveral deeds, as an act done without lawful ing suit at the time of the sale; but it was authority, and therefore null and void, &c." pending only for the purpose, if any, of The writer also appended to the said having the proceeds of the sale applied acadvertisement of *Myers in the news-cording to the respective rights of the paper, a notice signed by himself, in claimants, as they might thereafter be dewhich he stated: "I have notified Mr. G. termined by the court. Græme's suit A. Myers, under the advice of counsel, that against Cullen (the injunction suit) was the I could not safely consent to the sale above only one of the four suits in which the deadvertised by him to take place on the 22d cree appealed from was rendered, which instant, and that such sale would be re- had been brought, or, at least, in which a garded by me as illegal, and therefore null bill had then been filed; and the injunction and void." It seems also that he attended awarded in that suit had been dissolved. the sale, and then and there gave a similar To be sure, it seems that Mary Hunter, exnotice, and that he had been notified by his ecutrix and sole devisee of James Hunter, sister, Mrs. Mary Hunter, executrix and on the very day on which the injunction

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Secondly-Is Cullen entitled to have full satisfaction of the balance due to him by Græme, out of the proceeds of the sale of the said lot of ground with the building thereon, before S. H. and J. F. Adams will be entitled to any part of the said proceeds on account of the balance due to them by Græme for said building.

It is a general rule of law, that the owner of land owns every thing annexed to it. Cujus est solum, ejus est usque ad cælum, is a well established and familiar maxim of the law. To this general rule, there seems, originally, to have been few or no exceptions. But there are now many exceptions to it, as well established as the rule itself;

was dissolved, sued out the subpoena which | different from the cases cited by the counsel was the commencement of the suit of for the appellants to show, that property "Hunter v. Johnston, &c.," which was one should not be sold by a trustee while there of the said four suits; but no bill was filed is a cloud over the title. The difference in the suit until the 7th day of September, will readily appear by a comparison of the 1868, nearly four months after the sale. If circumstances of this case with those which the property did not in fact, produce existed in them. The cases referred to are 286 a full *price, it was owing, doubtless, Rossett v. Fisher, 11 Gratt. 498; and Roberts to the means used by the debtor v. Roberts, 13 Id. 639. We proceed now to Græme, sr., his son, one of the trustees, enquire: Græme, jr., and his daughter Mary Hunter, to prevent the other trustee Myers from making a sale, after the court, by dissolving the injunction had decided that there was no impediment in the way. It was their duty then to do every thing in their power to promote a good sale; and it was their interest also, except so far as it may have been more to the interest of Græme, the debtor, to postpone the sale as long as possible, in order that he might, in the meantime, continue to receive and enjoy the rents of the property. If the sale was injured by the course pursued by them, they, surely, have no just cause to complain. See Ford v. Heron, 4 Munf. 316, cited by one of the counsel for Cullen. The Messrs. though there is some uncertainty, and Adams do not complain. But the property 288 *apparent conflict in the cases, as to sold for a fair price, considering the time the extent of some of these exceptions; at and the terms on which it was sold. The and it is sometimes difficult to determine Messrs. Adams in their answer to Mrs. whether a particular case comes within any Hunter's bill, deny that the sale was made of them. Most of these exceptions arise under such circumstances of difficulty and under the law in regard to what are called cloud as to title, that fair competition for "fixtures;" which law has undergone great it, at its real value in the market, was ex- change in modern times, as trade has included." And they "aver, on the contrary, creased and its necessities and conveniences that the price bid for the said property by have required a modification of the law. them, and at which the said property was The decision of Lord Ellenborough in Elwes struck off to them, as the highest bidders v. Maw, 3 East's R. 38, is a celebrated case therefor, was, in fact, the full market value on this subject. He considers it under three of the said property, supposing the title to heads: 1st, as between heir and executor; be conveyed to be a full and complete title 2dly, as between executors of tenant for in fee simple, without any cloud or difficulty life or in tail, and the remainderman or whatever." And they say they were in- reversioner; and 3dly, as between landlord duced to offer a full price for the same, in and tenant. This case may be found in 2 order to save themselves, as far as possible, Smith's Leading Cases p. 117 top and 228 from loss; and relying upon the judgment marg. ; and in it and the notes appended of the court to make such distribution of thereto both by the English and American the purchase money as should be consistent publishers of that valuable work, all the with their rights and those of the said Pat-authorities having any material bearing on rick Cullen." And Mrs. Hunter herself, in the subject are referred to. These authoriher answer to Cullen's bill for the ap- ties show how carefully the law in regard 287 pointment of a receiver, in *Cullen v. to these exceptions, guards the inheritance Græme, one of the said four suits, against injury by the removal of fixtures, manifests her willingness and indeed sug- even where they are annexed by a tenant gests that the purchase money should be for the purpose of trade; in which case the paid into bank to the credit of the cause, right of such removal is most favored by which she is advised, it would be entirely the law. The removal must be effected competent for the court to do, and respect- during the possession of the tenant and fully suggests that it ought to do; and then without any substantial injury to the freea conveyance may be made to the pur- hold. But it is unnecessary to comment chaser." Thus showing that the real con- further on the cases which relate to the law troversy on her part, was not as to the of fixtures, as that law has no direct applipropriety or fairness of the sale or the ad- cation to this case. The building erected equacy of the price, but as to the proper by the Adams, on the lot of ground conapplication of the proceeds. We can readily veyed by the deed of trust, to secure the see how the existence of a controversy be- debt due by Græme to Cullen, is certainly tween Cullen and the Adams as to the not a fixture, within the meaning of that proper application of the proceeds, might law; and if the parties, Græme and the enhance the price of the property at the Adams, or Cullen and the Adams, stood sale, by producing a competition between towards each other in the relation of landthese parties as bidders. This case is very lord and tenant, the Adams would not

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