
    Schenck (trustee) and Brower (cestui que trust) v. Ellingwood and others.
    
      Nov. 29. 1837.
    
      Cestui que trust and trustee. Appointment. Mortgagor and mortgagee. Parties.
    A defective execution of an appointment, made for a valuable consideration, is not wholly void. It amounts only to a defective execution and equity will supply it.
    A party who gives a mortgage to a trustee on a purchase of property cannot, when pressed for payment by a bill of foreclosure, test the validity of the trust.
    Where the rights of trustee and cestui que' trust are to be brought before the court, they can be joined as co-complainants; but still, where the cestui que trust is a feme covert, she should also appear by a next friend. This, how"ever, is more a matter of form than of substance, and a demurrer ore terms will not prevail.
    The defendant Ellingwood had given a bond and mortgage to meet part of purchase money for real estate. This real estate had been bought of and conveyed by the complainant Cornelius Schenck, as trustee for the complainant Maria Brower. Upon attempting to foreclose the mortgage in the present suit, the defendant Ellingwood insisted that the conveyance to him had not been executed in conformity to the provision of the trust deed under which Cornelius Schenck acted as trustee and sold: inasmuch as he, the said Schenck, held the said premjseSj jn trust, among other things, to lease, assure, order,convey and dispose of all and singular the said premises and every part and parcel thereof in sucK manner and form as the said Maria Brower should, in writing, under her hand and seal, executed in the presence of two witnesses, direct, limit and appoint; whereas the writing executed by her, directing the sale of the said premises to this defendant, was not executed in the presence of two witnesses, but was executed in the presence of one witness alone.
    
      March 27, 1838.
    The execution of the bond and mortgage was admitted.
    The cause came up on bill and answer.
    Mr. J. R. Lee, for the complainants.
    Mr. R. Lockwood, for the defendant N. D. Ellingwood.
   The Vice-Chancellor :

The mortgage was given to secure part of the purchase money on a sale by Schenck, the trustee of Mrs. Brower, to the defendant Mr. Ellingwood. His answer denies that the deed to him was executed in conformity with the provisions of the trust deed by which the premises were held in trust by Schenck : for that he, Schenck, was to convey and dispose of the premises, in such manner and form as the cestui que trust should, in writing under her hand and seal, executed in the presence of two witnesses, direct, limit and appointwhereas the writing executed by her, directing the sale of the premises to the defendant, was not executed in the presence of two witnesses, but was executed in the presence of one witness only. Hence it is argued that the deed is void and the consideration of the mortgage has failed, and, consequently, void also. This is the leading point in the case.

I cannot agree with the counsel for the defendant that the omission of another or second witness to the deed of appointment of the cestui que trust amounts to a non-execution and vitiates the whole transaction so as to render the title void in the purchaser. It is, at the utmost, but a defective execution which this court will supply in favor of a purchaser for a valuable consideration: Sugden on Powers, 356, 367; Cotter v. Layer, 2 P. Wms. 623 ; Godwin v. Kilsha, Ambl. 684.

There is no averment or suggestion to show that the title is attempted to be impeached on this account by any person who could take advantage of the defect or that there is any danger of disturbance to the possession in the purchaser or purchasers under it. On the contrary, it would seem that the only person who could ever raise the objection, namely, the cestui que trust, is now before the court as a co-complainant with her trustee, seeking to affirm the title and to give effect and validity to the mortgage by a sale of the premises under it and who will be bound by the decree and most certainly be precluded from questioning the title of any purchaser under it, in case the premises are sold. If not sold but redeemed, the present owner must be equally an object of protection in this court.

I am also of opinion that the defendants have no right to question the validity of the trust under which the bond and mortgage were taken. Whether it is or is not a trust allowed and authorized by the revised statutes is immaterial as regards the defendant. He and those claiming under him can be in no danger of being made liable to pay the bond and mortgage or the purchase money a second time, if they should now pay or suffer the property to be sold in payment and satisfaction of the lien upon it.

Then, as respects the question of parties. It is objected that the complainants are improperly joined ; and that if Mrs. Brower is a necessary party to this suit, being a feme covert, she should sue by a next friend. It was proper to make her a party ; and she might well be made a co-complainant with her trustee : Kirk v. Clark, Prec. in Chan. 275 ; Fish v. Howland, 1 Paige’s C. R. 20 ; Malin v. Malin, 2 John. C. R. 238. Regularly she should have appeared by a next friend, but the objection, on this ground, is not taken in pleading, although the answer states the fact of her being a feme covert. As it is more a matter of form than of substance, the objection ore tenus at the hearing ought not to prevail: Robinson v. Smith, 3 Paige’s C. R. 222.

There must be the usual reference to a master to compute the amount due on the mortgage. Upon the confirmation of the report, the master must proceed to sell.  