
    
      Peter Redheimer et al. ads. Andrew J. Pyron et al.
    
    1. C. S. and wife, by deed of the 8th October, 1829, in consideration of natural love and affection for their children, bargained and sold to one P. R., amongst other things, certain slaves with the future issue and increase of the females, in trust, that C. S. and wife, and the survivor of them, should have and use the slaves for life ; and after the death of the survivor for the use of their children, absolutely discharged from all further trust; and it was covenanted that the trustee, at the joint request of the husband and wife, or of the survivor of them, should sell and dispose of any of the property conveyed, and invest in other property, subject to the operation of all the trusts and uses expressed and declared in the deed. The wife died on the 26th October, 1836, and on the 29th of the same month and year, C. S., by deed of that date, released to the trustee all the interest he had in the properly in the deed abovementioned, and requested the trustee to sell the said property and invest the nett proceeds (after payment of certain debts that he had contracted, and the funeral expenses of his wife,) in other property that might be more for the benefit of said children , and in trust, that he would have hem educated out of the interest and income, if possible, if not, to apply so much of the share of each to that purpose, as might be necessary.
    2. Under this deed the trustee, before the death of C. S., sold certain of the slaves, paid the funeral expenses of the wife, besides certain debts and expenses of C. S.
    3. The trust expressed, that the trustee shall sell and dispose of the property at the joint request of the husband and wife, or at the request of the survivor; held not to mean that the trustee shall carry into effect any particular contract of sale which the husband and wife should indicate, but that upon the previous request of the husband and wife, or of the survivor, the trustee should ma.ke such sale as should seem to himself advisable.
    4. The Court of Law, 2 McMullan, 280, having decided that the title of the purchaser to the slaves sold by the trustee was good at law, both on the ground of his legal title and power to sell; held, that this decision must prevail. 
    
    5. If the trustee sold in pursuance of his power, the title of the purchaser could not be affected, or the slaves directed to be specifically given up, although he may have sold with the intention to dispose of the money in violation of his trust.
    * 6. It would seem that the only question to affect the purchaser in such case, would be, whether he was bound to see to the application of the purchase money; and in general our Courts have held that purchasers are not so bound. 2 Dess. 375. 
    
    7. The trustee being accountable for the fund in his hands, and his account being before the Master, the question whether he should be allowed for paying the debts of the tenant for life, and the funeral expenses of his wife, to await the coming in of the Report; the complainants at the same time having leave to make the question, whether if the purchasers knew that the trustee intended to misapply the money, and paid it to him with that knowledge, they might not, in the event of his insolvency, be compelled to make good«my deficiency of the fund.
    
      Before Johnson, Ch., at Charleston, February Term, 1843.
    Johnson, Ch. The late Charles Simons, and his wife Rachel, also deceased, by deed bearing date the 8th day of Oct. 1829, a copy of which is exhibited with the complainant’s bill, in consideration of natural love and affection for the complainant, Sarah M. C. Pyron, and the minors, their children, bargained and sold to the defendant, Peter Red-heimer, amongst other things, certain slaves therein mentioned, with the future issue and increase of the females; in trust, that the said Charles Simons, and his wife Rachel, and the survivor of them, should have and use the said slaves for life; and after the death of the survivor, in trust, for the use of the complainants, their children, absolutely discharged of all further trust; and it was covenanted by th„e said deed, “ that at any time, when it shall appear beneficial, or for the interest of the said Charles and Rachel, to sell and dispose of any of the above mentioned property, that he, the said Peter Redheimer, will sell and dispose of the same at their joint request, or at the request of the survivor of them, and vest the.same in other property, which shall be immediately subject to the operation of all the trusts and uses expressed and declared in this indenture.”
    Rachel Simons, the wife, died on the 26th October, 1836, and on the 29th day of the same month of October, 1836, Charles Simons, by deed bearing that date, releases to the defendant, Peter Redheimer, all the interest he had in the slaves, and other property referred to in the deed above mentioned, and also a slave called Bill, stated to have been purchased with the proceeds of the sales of the life estates of the said Charles''Simons and his wife Rachel, of two of the slaves mentioned in the said deed, made with their consent, for the uses and trusts expressed in the said deed first above referred to. The deed then goes o$ to recite that, “whereas the said Charles Simons had contracted certain debts to the amount of about $300, which he requires to be paid by the said Peter Redheimer, trustee as aforesaid, out of the proceeds of the said estate ; and the said Peter Redheimer undertakes the said payments, on the terms of the deed being fully complied with; and whereas, most of the said negroes are young and unable to work, producing no revenue to the estate, this conveyance is therefore made to the said Peter Redheimer, that he will sell any or all the said negroes at the best market price, and invest the nett proceeds (after paying the said debts and the funeral and other expenses of the said Rachel Simons,) in other property that will be more for the benefit of the said children; and in trust, that he, the said Peter Red-heimer, will take the said children in charge, and have them educated, as far as possible, out of the income or revenue arising from the said trust estate; but should it become necessary for the said trustee to take a part, or all, of the said capital for paying the maintenance, education, and other expenses of the said children, he is hereby enjoined, and it is the true intent and meaning of these presents, that he, the said trustee, shall not pay away for or on account of any one of the heirs, more than his or her dividend of said principal; and in trust, that the said Peter Redheimer shall use all due economy in the management of the said estate, and cause to bé educated and maintained each of the said minors, according to the best of his judgment, and agreeably to the means placed in his hands for that purpose.” Charles Simons died on the 9th day of November, 1836, a few days after the execution of the deed. The bill charges that the slaves mentioned in the deed of the 8th of October, 1829, are the complainant’s, and the prayer is, that they may be decreed to be delivered to th,e complainant, and for general relief. The defendant, Peter Red-heimer, states in his answer, that under the authority vested in him by Charles Simons’s deed of the 29th October, 1836, he sold the slave Billy, on the 1st November; and on the 7th, he sold five others, through the agency of a factor, for the nett sum of $1,894 21, out of which he paid the funeral expenses of Rachel Simons, and certain other debts and expenses of Charles Simons, amounting in all to $376 90, leaving a balance of $1,517 31 in hands, for which he is ready to account. He further states, that Polly, one of the slaves named in the deed of the 8th Oct. 1829, is now in the possession of Mr. Thompson, the solicitor of the complainant, and prays that it may be required by what authority he holds her. The defendant, E. M. Mood, states in his answer, that in the sale referred to in the answer of Peter Redheimer, he purchased five of the slaves mentioned in the deed of the 8th of October, 1829, viz: Hannah, John, Jim, Sally, and Robert; and that he afterwards sold four of them, Hannah, John, Sally, and Robert, to his co-defendant, F. 0. Blum, and that he did this relying on the authority given to his co-defendant, Peter Redheimer, by the deeds before referred to. The defendant, F. 0. Blum, admits in his answer that he has purchased of his co defendant, E. M. Mood, the negroes named in his answer, believing that his other co-defendant, Peter Redheimer, had the right and authority to sell them, ünder the said deeds of the 8th Oct. 1829, and the 29th Oct. 1836.
    The bill contains various other charges and allegations, which have been answered and denied by the defendants, and have not been supported by the evidence. It is unnecessary, therefore, to state them, especially as they are wholly irrelevant to the only question raised on the argument, and that is, whether the authority given by Charles Simons to Peter Redheimer, to sell the slaves, by the deed, on the 29th October, 1836, is in pursuance of the power reserved in the deed of the 8th r'ct. 1829. The American people have been so long and so fully indoctrinated with the principle that all special powers must be strictly pursued, that it would now be something like treason to question its correctness. It is founded on good sense and sound reasoning, and commands the assent of all who have the capacity, and give themselves the trouble, of thinking of it. If it be correct in politics, it is equally so in law, for the proof of which a few examples will suffice. In Bateman vs. Davis, 3 Mad. 98, the trustees of a marriage settlement were authorized by the settlement, with the consent of the wife, in writing, to sell the estate, to raise a sum of money for the husband. They did raise the sum without the written assent of the wife, but the wife subsequently gave her consent in writing, declaring that the sale had been made with her full consent; and it was held that the sale was void, because the consent of the wife had not preceded it. So where power was given to trustees to sell to raise money, to supply the deficiency of the personal estate, to pay debts, it was held that the power would not authorize the sale, unless there was an actual deficiency, and then only so much of the estate could be sold as was. necessary to supply the deficiency. Sugd. on Powers, 265. So in Doe. Ex. Dem. Willis vs. Martin, 4 D. and E. 39, where the deed contained a power enabling the settlers to revoke the uses of the settlement, and the trustees to sell the estate, so as the purchase money should be paid to the trustees, and not the settlers, and to invest it in other lands to the same uses — the settlers revoked the settlement, but the purchase money was paid to them, and not to the trustees; and it was said that the power of revocation was conditional; ánd as the condition, the payment of the money to the trustees, had not been performed, the revocation was a nullity. Now*all the interest which Charles Simons had in the property settled here, was divested by the deed of the 8th Oct. 1829, except what is expressly and specially reserved in the deed. The rights reserved are for the joint use of himself and wife for life, and of the survivor for life, and the power of assenting to the sale by the trustee, to be by him vested in other property, which shall be immediately subject to all the trusts and uses therein expressed and declared. In either case, the remainder is limited over to the children absolutely.
    If I am right in supposing that these powers are special, and must be strictly pursued, Charles Simons had no authority to create new trusts, or to vary in the least those created by this deed, and all acts done by the trustee in pursuance of other powers derived from him, are a nullity.
    What are the powers conferred on the trustee, by Charles Simons’s deed of the 29th Oct. 1836? The authority to sell is in conformity to the former deed. But new trusts are created, and other powers conferred. He is to pay out of the proceeds the debts of Charles Simons, and the funeral and other expenses of Rachel Simons, and if it should become necessary, he is to expend the whole capital in the maintenance and education of the children. There are conditions annexed to the authority to sell, and if he fails in the performance of any of them, he violates the trusts created by this deed, and if he performs them, he violates the trusts created by the deed of the 8th October, 1829, which directs, in the event of the sale, the proceeds should be invested in other property, the corpus of which was to go over in remainder to the children. All the powers of both Charles Simons and the defendant, Peter Red-heimer, having been derived from this deed, and the sale having been made for purposes and trusts foreign to it, is void.
    I have felt some difficulty in determining what order to make. If a money decree, according to the report of the Master, there is no one entitled to receive it for the minor complainants, and if a decree for the surrender of the ne-groes, there is no one to receive their portion. I have, therefore, concluded to retain the case until guardians shall be appointed for them; and it is ordered that one of the Masters shall inquire and report whether any, and what, suitable person will accept the appointment of guardian of the said minor complainants.
    Defendants appealed from the decree of the Chancellor, on the following grounds:
    1. That his Honor' erred in decreeing that Peter Red-heimer was not authorised to sell the negroes, under the deed of 29th of October, 1836 ; and in deciding that the said sale was not in pursuance of the power reserved in the deed of the 8th October, 1829.
    2. That his Honor erred in decreeing that Peter Red-heimer in any way transcended the power reposed in him, under the first deed, or that he or Charles Simons in any way transcended their powers under the two deeds.
    3. That his Honor, in decreeing that Peter Redheimer had not a power to sell under the deed of 1836, has reversed the unanimous decision of the Law Court of Appeals made between the same parties.
    4. That his Honor’s decree was, in other respects, contrary to the law and facts of the case.
    
      
       See on this subject the cases collected per O’Neall, J. at the above reference, and copies of the deeds.
    
    
      
      
        Inning vs. Peyton and others, and cases collected and commented on by the learned Reporter.
    
   Curia, per Harper, Ch.

There is, perhaps, some difference between the present case and those in which the trustee is authorized to sell with the assent of the cestm que trust, or by the cestui que trust by the assent of the trustee. In such case the trustee and cestui que trust are intended as checks on each other to prevent an imprudent disposition, and it may well be that a general previous assent by one to any sale which the other may make would be void, and an assent to the particular contract required. The trust in this case, is that the trustee will sell and dispose of the property at the joint request of the husband and wife, or at the request of the survivor of them. This cannot mean that the trustee shall carry into effect any particular contract of sale which the husband and wife shall indicate. This would be to remove the control which the general policy of the law and the particular provisions of this deed require the trustee to exercise. It would seem that it can only mean that Upon the previous request of the husband and wife, or of the survivor, the trustee shall make such sale as shall seem to himself advisable.

But the Court of Law seems to have decided that the title of the purchasers of the slaves was good at law, both on the ground of the legal title of the trustee and of his power to sell, and I think we must respect that decision. If the trustee sold in pursuance of his power, the title of the purchasers cannot be affected or the slaves directed to be specifically given up, although he may have sold with the intention to dispose of the money in violation of his trust. The only question to affect them in that case seems to be, whether they were bound to see to the application of the purchase money. In general, our courts have held that purchasers are not so bound. 2 Dess. 375. It might be a question, however, if the purchasers know that the trustee intends to misapply the money, and pay it to him with that knowledge, they might not, in the event of his insolvency, be compelled to make good any deficiency of the fund. But this it is not necessary to consider now. The defendant, Redheimer, is accountable for the fund in his hands, and his account is before the Master. There is no suggestion of his insolvency. The only material particulars in which the directions of the deed of 1836 are alleged to be in violation of the trusts of that of 1829, are those for paying the debts of the tenant for life, and the funeral expenses of his wife. Upon the coming in of the report, the question will arise, whether he is to be allowed for payments made by him on these accounts. At the same time, complainants may make the question, if they desire it, whether, in case of his insolvency, the purchasers are bound to make good any deficiency of the funds.

Rhett & Malone, for appellant, Redheimer.

Kunhardt, for appellants, Blum and Mood.

Johnston and Dunkin, Chancellors, concurred.

Johnson, Ch. absent at the hearing of the appeal.  