Bonner v. Lessley

Citations

• 61 Miss. 392

Syllabus

<p>1. Trustee. 1lemovalfrom the State. Effect.</p> <p>' Where the instrument creating a trust provides “that if the trustee named shall refuse or become unable to execute the trust according to the true intent and meaning thereof,” certain persons named “shall have power under his or their hands and seals to appoint some other person to do the same,” the trustee by his removal from the State does not become unable to execute the trust nor is such removal a refusal by him to perform the trust.</p> <p>2. Same. Power of appointment.</p> <p>Where the instrument requires that the appointment of another trustee shall be made under the hand and seal of the person executing the power, and the execution was in writing acknowledged, but not signed and sealed, it is fatally defective and confers no power upon the person appointed.</p> <p>3. Same. Void sale. Purchaser. Subrogation.</p> <p>The purchaser under a void trustee’s sale, if the money paid by him is applied to the extinguishment of the trust debt, becomes the equitable assignee of the debt and is subrogated to the rights of the original cestui que trust, and as such entitled to charge the land in equity with the debt paid. And this right passes to those claiming under him.</p> <p>4. Same. Equitable right. How enforced.</p> <p>But this is an equitable right only and must be enforced by application to a court of chancery. It is only when the equitable estate of the defendant is of such a character that he would be entitled in a court of equity to have a transfer of the legal title, that he may defend in an action at law brought by the holder of the legal title.</p> <p>5. Ejectment. Defendant. Equitable right.</p> <p>Where the extent of the right of the defendant in ejectment is to fix an equitable charge on the property he must submit to a judgment in ejectment and resort to chancery to enjoin its execution until his equitable charge is satisfied.</p>