
    *Christian v. Yancey.
    January Term, 1856,
    Richmond.
    1. Deeds of Trust — How Legal Title Vested in Trustee. —By the execution by the grantor, and the record, of a deed-of trust, the legal title to the property embraced therein is vested in the trustee,-without the knowledge or assent of the trustee. (Skipwith v. Cunningham, 8 Leigh, 271, accord.)
    2. Same — Acceptance of Trust by Trustee — Effect of Delay. — A delay of ten months by the trustee to accept the deed, and expressions of doubt and hesitation about accepting the trust, made to a cred-1 itor of the grantor claiming against the deed, by the trustee, without having seen the deed or knowing its precise terms, create no bar to the subsequent acceptance of the trust by the trustee.
    3. Same — Same—Relates Back to Date of Deed. — An acceptance of a trust by a trustee relates back to the date of the deed, and the title of a trustee, who accepted after a sale of the trust subí ect under an execution against the grantor in the deed of trust, made after the record of the deed .of trust and before the acceptance by the trustee, is good against a purchaser at such sale.
    4. Same — Same—Unequivocal Acts of Acceptance.— The appointment by power of attorney of an agent to execute the trust, and the institution of a suit to recover the trust subject, are unequivocal acts of acceptance of the trust by a trustee.
    This was an action of detinue, in the circuit Superior Court for the county of Campbell, for a negro slave, by Jonathan Christian, trustee, against George W. Yancey. Issue was joined on the plea of non detinet.
    On the trial, it was proved, on the part of the plaintiff, that Henry A. Christian by his-deed, dated 10th December, 1841, conveyed the negro slave in controversy, named Kiah; with other slaves,' to the plaintiff, in trust, to secure the payment of certain debts therein enumerated; the grantor to remain in possession of the slaves, and to appropriate their hires to the payment of the debts, until it should become necessary to sell the slaves for the payment of a debt due to the children of *the grantor at his death. This deed was duly recorded on the 22d December, 1841. On the 10th day of February, 1842, Henry A. Christian made another deed, conveying the same slaves to the plaintiff, Jonathan Christian, to secure the same debts and to indemnify the secured sureties, but without any reservation of the possession of the slaves to the grantor. That the slave Kiah was in the possession of the defendant, Yancey, and was worth about seven hundred dollars. That the debts secured by the deed of trust were bona fide; that some of them had been paid out of hires of the trust subject; and that Henry A. Christian had hired the negroes out for the years 1841, 1842, and 1843, taking bonds for the! hire, payable to himself.
    On the part of the defendant, it was proved, that two executions of fieri facias against Henry A. Christian, issued from the clerk’s office of the Circuit Superior Court of the town of Lynchburg, on the 6th day of October, 1843, and were levied the same day on the slave Kiah, as the property of Henry A. Christian, the, plaintiffs in the execution having executed indemnifying bonds to the sergeant. That the said slave was sold under the said executions, on the 4th December, 1843, to the defendant, George W. Yancey, for the sum of $486, he being the highest bidder for the same. That the son of Henry A. Christian was present, and forbid the sale. That the said slave was hired for the years 1842 and 1843, by Henry A. Christian, to Messrs. Hancock and Adams, who were creditors of Henry A. Christian, not secured by the deeds of trust; and that the hires for the said slave were credited on the books of the firm to the said Henry A. Christian. That at the end of the year 1843, the defendant took possession of the slave.
    It was further proved by a witness, named West, that, on the 30th September, 1848, he delivered a letter from one of the plaintiffs in both the said executions to the trustee, Jonathan Christian, in the following words:
    September 30th, 1843.
    “Mr. Jonathan Christian:
    “Dear Sir — I have an interest in a matter in which you are concerned as trustee for your brother, Henry A. Christian. There was a trust deed recorded in Lynchburg, about two years ago, or perhaps a little more, in which you are appointed trustee, but do not appear to have signed or acknowledged the deed. I suppose, of course, you were acquainted with the fact that you were thus appointed; and although in law you would not be bound as trustee, unless you in some way admit that you were so appointed with your consent, or unless you do some act recognizing the appointment; ] yet, with this notice of the fact by one who has an interest in the trust subject, silence on your part would be regarded as sufficient recognition of that appointment. You will not regard it then as an improper inquiry on my part: whether, in the first place, you assent to that appointment, or whether you renounce the trust? second, whether you have appointed Henry A. Christian as your agent to carry out the provisions of that trust? third, whether Henry A. Christian has ever accounted with you for the profits arising from the hires of the tr.ust subject? fourth, whether you hold yourself responsible for the acts of Henry A. Christian in reference to the trust subject? If you are in fact the trustee, I regard you as good security for Henry A. Christian for such misapplication of the trust subject as has been already made by him. But if you are not trustee, and'do not intend to act as trustee, you might save both of us some expense and trouble by so-avowing. If you do not so avow, I shall’ then feel authorized to presume that it is your intention not to renounce the trust. Be so good as to let me hear immediately, and you will much oblige me. I do not wish to involve you unnecessarily, but you know that I must husband my resources at this time, and therefore I cannot sit by patiently and see that trust subject wasted. Indeed, it *cannot be regarded by you as unkind in me to> warn you of your situation, as well as my own ; for it is a large amount of property,' of considerable annual value, and many other creditors besides myself are interested in the same. Very respectfully, yours, &c.
    “Sam’l J. Walker.”
    And the statement of this witness of his conversation with the plaintiff, on the subject of the letter, corroborated the plaintiff’s answers to interrogatories.
    The plaintiff, in reply to interrogatories, propounded by the defendant, on the 12th September, 1844, answered as follows:
    ‘‘Interrogatory 1. I never consented to> act as trustee until the 6th December last; at which time I gave H. A. Christian a power of attorney to act as agent for me. I had declined to act before that time, because I knew nothing about the nature of the deeds. I had only heard that I was appointed a trustee, and, of course, I did not consider myself bound by the provisions of the deeds until I understood what they were.
    ‘ ‘Inter. 2. As well as I recollect, some time about the last of September, 1843, Mr. John W. West brought me a letter from Samuel J. Walker, requesting to know whether I considered myself bound by the provisions of a deed made by H. A. Christian. I believe this was the first time that I had heard that I was the trustee. Henry A. Christian had never spoken to me upon the subject. And I informed Mr. West that I should not act without knowing something more respecting the deed, and that, under present circumstances, I did not think at that time that I should agree to act at all. Mr. West insisted to know what those circumstances. were. I told him if I did a'ct at all, the property must be given up to me.
    “Inter. 3. I recollect having a conversation with Samuel J. Walker shortly after the conversation with Mr. West, and I think I told him nearly the same that I did Mr. West. I recollect that he told me that the *funds had been mis-applied, and I might have told him that I did not think I would act under any circumstances.
    “Inter. 4. Henry A. Christian came to see me after the sale of the negro, I believe, though I am not certain, because I do not recollect when the negro was sold. He came to see me on the 6th December last; at which time I gave him the power of attorney to act for me. Whether it was to forbid the sale or bring the suit, I do not at this time recollect. I believe that he informed me, after the sale of the negro, that he should bring suit. The suit was not brought without my knowledge. I do not recollect that he used any solicitations; he merely informed me of the provisions of the deeds, and that the funds had been properly applied.
    “Inter. S. Henry A. Christian never consulted with me respecting the deeds, until the 6th‘ December, the time that I gave the power of attorney.
    “Inter. 6. Henry A. Christian, I believe, had opportunities, but not frequent, as I did not often see him about the time he executed the deeds, though I saw him often enough to have informed me of his intentions, as well as I recollect.
    “Inter. 7. I believe that Samuel J. Walker was the first that informed me that I was certainly appointed trustee. I never acknowledged his agency that I recollect of, because I knew nothing of the nature of the deed until September, 1843, when Mr. Walker informed me.
    Inter. 8. I certainly recognize Henry A. Christian my agent under the deed at this time, because I gave him a power of attorney, which has never been revoked. The property' has never been placed in my possession. I have never requested or demanded it.’’
    After all the evidence was adduced by both parties, the court, on the motion of the defendant’s counsel, gave the following instructions to the jury:
    1.That if it shall appear to them from the evidence, *that the plaintiff, Jonathan Christian, claiming title to the negro Kiah in the declaration mentioned, in virtue of the two deeds of trust before mentioned, was named as a trustee in the said deeds by the grantor without his knowledge or consent; and that he, the said Jonathan Christian, at no period whatever, up to the 5th December, 1843, had accepted the said deeds, or either of them, and had taken on himself the burden of the trusts thereby created; but, on the contrary thereof, that always, from the date of the said deeds up to that period, the said Jonathan Christian had renounced and disclaimed the character of trustee, in which he now claims, and during all that time had refused and disagreed to take on himself the duties and responsibilities of the trusts intended to be created by the" said deeds, then the said Jonathan Christian has no right to maintain his action for the recovery of the negro Kiah in the declaration mentioned, even though the deeds of trust aforesaid be bona fide, and founded on a valuable consideration.
    2. That if the said Jonathan Christian, up to the 5th day of December, 1843, ha.d at all times, from the dates of the said deeds of trust, refused and dissented and disagreed to assume the character of trustee, or to take as. trustee under the said deeds, or to execute the same as trustee, then no subsequent assent to the said deeds, and no subsequent acting by him under the same, would make him such trustee under the said deeds, as to authorize him to maintain this action against this defendant.
    And the plaintiff’s counsel moved the court to instruct the jury as follows:
    1. That the declarations made to the witness West, as proved by him, and the declarations stated by the plaintiff to have been made by him to the witness West, in his answer to the defendant’s interroga-, tories, were too equivocal and uncertain to prevent his accepting the said, trust at any time thereafter he might think proper, if he chose so to do.
    *2. That the suing forth'the'original writ in this case was an acceptance of said trust, and entitled him to maintain this action.
    3. That, by this act of acceptance, the legal title to the said slave Kiah now in controversy invested in him, by said deed of trust of the 10th day of December, 1841, and the 10th February, 1842, related back to the execution and delivery of the said deeds. ,
    4. That a disclaimer which would divest him of a legal title to said slave under said deed of trust, whether by deed or parol, must have been direct, unequivocal and decisive, and not uncertain, indecisive, or contingent.
    5. That if a legal s disclaimer had been made by the plaintiff, yet if it were made in the absence of the deeds of trust, and' under the influence of any misrepresentation or mistake as to the character or contents of the deed, or' of the conduct of the vendor, it would not prevent his accepting the trust at any after time.
    6. That in this case, the trustee having no personal interest in the deed, no parol refusal to accept of the trusts was sufficient to bar his acceptance of the trust at any other time; and that in case he did subsequently accept, his powers under the trust would relate back to the execution and delivery of the deeds.
    But the court refused to give any of the instructions moved by the plaintiff’s counsel in the form in which they were presented ; but gave the first and fifth instructions with this modification, “that the title of the plaintiff under said deeds of trust would not relate back to the date of the deeds, but would commence with the actual acceptance.” And gave also the second instruction with this modification, '‘that although the suing out the writ in this case was an acceptance of the trust, it was not such a one as would entitle the plaintiff to recover in this action.”
    To the opinion of the court giving the instructions asked by the defendant’s counsel, and refusing those asked for by the plaintiff, the plaintiff excepted. The *jury having found a verdict for the defendant, the plaintiff moved for a new trial, which was refused. To which judgment of the court the plaintiff excepted. The bill of exceptions sealed by the court set forth all the evidence offered to the jury. On the petition of the plaintiff, a supersedeas was awarded by the Court of Appeals.
    J. Garland, for the appellant:
    Preliminary to the discussion of the questions involved, it is proper to remark, that the justice of the debts secured, and the liabilities indemnified against, by the deeds of trust of the 10th of December, 1841, and the 10th of February, 1842, and the bona fides with which these deeds were executed, were not, in the slightest degree, questioned on the trial of the case in the circuit court, nor. was there any evidence offered tending to impeach them. The whole case turned upon the question, whether the appellant, Jonathan Christian, the trustee named in these deeds, was the trustee at the time this suit was brought, which was .on the 9th of January, 1844. That the slave Kiah, for whose recovery the action was brought, was conveyed by both the deeds of trust, has been levied upon and sold by the sergeant of the city of Lynchburg, in virtue of two executions of Samuel J. & Benj. W. Walker and Samuel J. . Walker, and was purchased by the appellee Yancey, and in his actual possession at the time of the emanation of the writ in this suit, are facts clearly proved by the testimony in the record, and not controverted.
    As to the two instructions to the jury, moved by the defendant’s counsel and given by the court, X insist that there is no such refusal or disclaimer proved in the cause as they pretend tobe based upon, and as legal propositions they are not sound. No verbal refusal or disclaimer, unless another trustee had been appointed by lawful authority, would have been sufficient to have divested this trustee of his legal title to the property ^conveyed, or prevented him from accepting and acting under the trust. He may not have been responsible for the property conveyed to the vendor or cestuis que trust until he actually accepted, but, by the deed, the legal title to the property was invested in him, and he had a right to pursue and recover it -wherever it was found, unless he had in due form of law relinquished it, or been legally divested of it. This, it is not pretended, had been done in this case. These deeds being bona fide, a fact conceded by the instructions, this is the necessary result.
    Whether a refusal or disclaimer may be verbal, or by deed, or in any other form, I do.not not deem it material to discuss, but in «whatever form it is done it must be unequivocal and positive. Hill on Trustees, p. 224, 2d paragraph from top ; Ib. p. 225, 2d paragraph, (2d ed. top page 316) ; lb. p. 227, 3d paragraph. I imagine it is, also, well settled that a trustee, whose title has not been divested by his own written disclaimer, or the decree of a court of competent jurisdiction, may accept the trust although he had verbally refused or disclaimed, and that by such acceptance his rights would stand precisely as if he had neither disclaimed nor refused. McCrubbin v. Cromwell, 7 Gill. & John. 165. Xn Miles v. Neaven, 1 Cox Rep. 159, the court permitted a trustee, who had disclaimed by answer, to revoke the disclaimer and resume the trust. In this case, the conversation relied on as proving a refusal or disclaimer by the trustee, was not had with the vendor or the cestuis que trust, but with a disinterested person. The declarations made were founded upon a misrepresentation of facts and in the absence of the deed, and if they amounted to a refusal or disclaimer at that time, they did not estop him from subsequently accepting.
    I suppose it cannot be, and will not be, controverted, that the deeds of the 10th of December, 1841, and of the 10th of February, 1842, divested the vendor of the legal title to the property conveyed, and passed it to the trustee named, for the purposes stated. This *is what the deeds in terms do, and it is absolutely necessary to enable the trustee to pass a legal title to the purchaser if he has to sell the property conveyed for the purposes of the trust. 2 Bouv. Inst. 329, \ 1907; 2 Tuck. Com. 432 (top page) ; Sheppards v. Turpin, 3 Grat. 373; Owen v. Owen, 1 Atk. 496.
    The appellant having by two positive acts —the appointment of an agent by deed, as he was authorized by the deeds of trust to do, and the institution of this suit — -accepted the trust, his legal title related back to the execution of the deed. The plaintiff’s counsel, on the trial in the court below, moved the court to instruct the jurj: “That the suing forth the original writ in this case was an acceptance of said trust, - and entitled him to maintain this action.” This instruction the court gave, but with this most extraordinary and suicidal modification: “but not such a one as would entitle the plaintiff to recover in this action.” Harrison v. Graham, 1 P. Wms. 241, n. 6th ed. ; 1 Wms. E)x’ors, 157; Hanbury v. Kirkland, 3 Simons, 265; Lord Moulfort v. Lord Cardagan, 17 Vesey, 489; Hill on Trustees, 218.
    - The instruction and modification are utterly incompatible and irreconcilable. If the plaintiff could not recover in this action, the deed being bona fide, he could recover no part of the property in any action. Between the registry and the acceptance, the deeds would have been mere nullities. If the plaintiff had legally divested himself, or been legally divested of his title, he could not have resumed it in this way. If he had not been legally divested, the title was in him from the beginning, and his acceptance related back to the execution and delivery of the deeds. 2 Tuck. Com. top p. 431; Cochran v. Paris, 11 Grat. 348.
    This doctrine is not only true as to acceptance, but as to disclaimer. When a trustee or donee refuses or disclaims, he is divested of his title from the beginning. Hill on Trustees, p. 226, (top p. 319, 2d ed.) and the cases cited in note (b). The reasonableness and propriety *of these rules are so manifest, that it was matter of astonishment to me, as, no doubt, it will be to this court, to find that the court below should have decided the very reverse, and instructed the jury, in effect, that between the delivery and the acceptance of the deeds by the- trustee, the deeds were inoperative and ineffective. The error of this proposition is manifest from the fact, that there was no such abeyance in the title as to have required the interposition of a court of equity to fill it. The legal title was certainly somewhere, and was just as certainly out of the vendor. It could not invest in the cestuis que trust, for these were not such deeds as could vest the legal title to the property in them. .See Poage v. Bell, 8 Heigh, 604. In case of the refusal, disclaimer, death or removal of a trustee, a court of equity, which will not allow a trust to fail for the want of a trustee, would appoint a new one; and was it ever doubted that the powers of ' the new trustee would relate back to the execution and delivery of the deed, and be as plenary, as far as it was unexecuted, as those of the original trustee? Could he not recover, by action at law, any property conveyed by the deed which had been, illegally taken away or converted? Why is it, then, that a trustee who accepts after the execution and delivery of the deed, as he may lawfully do, may ndt do the same thing? There can be no good ■ reason why he should not, unless the object of the law is to destroy instead of sustain trusts. Hill on Trustees, top p. 301; Code of 1849, p. 675; Hill on Trustees, p. 319, top. The modifications, then, of the- first, second, as well as.the fifth instructions moved by the plaintiff’s counsel, were all wrong. The six instructions moved by the plaintiff, being all consequences of the first, and deductions from it, founded upon the facts proven in the cause, should have been given, which would have been decisive of the case in favor of the appellant.
    It has never yet been decided that the trustee named in a deed of trust could accept in no other form than *'by the signature of his name. The decisions are all the other way. That he must accept at the time of the execution and delivery of the deed, (Cunningham’s ex’or v. Skipwith, 8 Leigh, 271); that the mere intimation of a doubt whether he will accept or not, is decisive of his right to accept; that, if he subsequently accepted, _ the deed was void from . its execution until the acceptance — these are the monstrous propositions embodied in the instructions of the circuit court to the jury. To sustain these trusts, when they are bona fide, has always been a favorite principle in a court of equity, and it always extends its aid, when necessary, to protect the legal title. In this case there was a living trustee, appointed by the deed, in whom the legal title was complete. See opinion of Baldwin, J., in Skipwith’s ex’or v. Cunningham etals., and authorities there cited.
    I submit, then, if these deeds be fair and bona fide, that I have established the propositions: 1st. That, by the execution and delivery of these deeds, Jonathan Christian was invested with the legal title of the property conveyed by them. 2d. That his delay to accept offered no legal obstacle to his acceptance. 3d. That the mere verbal expression of a doubt, when informed that he was named as a trustee, made to others than the vendor and beneficiaries, and in the absence of the deed, was no legal es-toppel or bar to his future acceptance. 4th. That the power of attorney to H. A. Christian, and the institution of this suit, were decided and unequivocal acts of acceptance, and that this acceptance placed his rights, as trustee, precisely where they would have stood if he had accepted from the beginning.
    Were these deeds bona fide? The vendor in these deeds is incapable of any intentional fraud, and no such imputation was attempted on the trial in the court below. That the debts secured were in-reality due, seems not to have been doubted, but conceded. . That the purposes of the vendor were honest and fair, no *body doubted. The question then is, were these deeds, or any provision in them, fraudulent in law? In the deed of the 10th of December, 1841, there is found this provision: “and upon this further trust, that the said Jonathan Christian shall permit the said Henry A. Christian to remain in peaceable and quiet possession of all the said slaves, and to take the profits and hires of the same, and apply the same, in the order as he may deem best and just, to the discharge of any or all of the above named debts and liabilities, (but not to break in on the original stock, as it is liable to natural reduction in value, until the debt intended to be secured to the children shall have been paid, which the said Christian is at liberty to do, after paying from the hires of said negroes the debts and liabilities due as aforesaid”). This provision of the deed, although H. A. Christian was to take nothing under it, it was supposed might be interpreted to impart to him a control over the property incompatible with the trust. To remedy this, the deed of the 10th of February, 1842, was executed, revoking this provision. Even, then, if this provision could, by any possible interpretation, be regarded as fraudulent in law, which is by no means conceded, the deed of the 10th of February, 1842, is clear of any such difficulty, and' conveys the identical same property, embracing the slave Kiah. That the deed of the 10th of February, 1842, contains any provision fraudulent in law, was not, for anything appearing upon the record, and cannot be pretended. It would be a waste of time to defend these deeds against the charge of fraud, in fact, when no such charge was made or attempted. The fairness and validity of the provisions of this deed are amply vindicated by the cases of McCullough v. Sommerville, 8 Leigh, 415, and Lewis v. Caperton, 8 Grat. 148.
    If these views be true, it is manifest that the verdict of the jury was contrary to the evidence, and should have been set aside, and a new trial awarded, as moved for by the plaintiff’s counsel. If the case had been ^doubtful upon the evidence, which it was not, the new trial should have been awarded, because of the erroneous, inconsistent, and incompatible character of the instructions given to the jury upon the trial. What jury, even if they had been endowed with almost super-human wisdom, could have understood what the law of the case was from these instructions? Indeed, the whole case turned upon the legal propositions involved in the instructions given and revoked, and again given and revoked, over and over again.
    I cannot conceive the possibility that this court will regard the declarations of the appellant Christian as sufficient to prove either a disclaimer of the deed or a refusal to act, much less a bar to the actual acceptance subsequently made.
    R. T. Daniel, for the appellee:
    The trustee did not accept the trust until after the sale of the slave under execution. The question of the acceptance of the trust was submitted to the jury by the first and second instructions given on the motion of the defendant, and the jury found that he never did accept the trust.
    Might not a trustee disclaim a trust by act in pais? Poage v. Bell, 8 Leigh, 604; Cunningham v. Skipwith, 8 Leigh, 271. In the latter case, there had been no actual acceptance of the deed by the cestui que trust. The question of the right of the trustee to disclaim is there incidentally discussed by Tucker, J., p. 280.
    If true, that the trustee might disclaim by act in pais, it is unnecessary to discuss the force and effect of the evidence in the cause. The jury have found that he did disclaim, and there is no quarrel with that verdict. Even if the trustee, ordinarily, could not disclaim in pais, yet, in this instance, the rights of third persons have intervened, who made equiry of the trustee and acted upon his replies. The doctrine of estoppel in pais applies. This, unlike the estoppel of record, is a *favorite of the courts. 2d vol. Hare
    & Wallace’s edition of Smith’s Leading Cases, top page 544, and the authorities there collected. This is a rule which does not shut out the truth, but promotes morality and fair dealing.
    The jury have, then, found that the trustee did disclaim; and even if he had no right to disclaim, yet there is an estoppel in pais to his acceptance.
    
      
      Deeds of Trust. — See monographic note on “Deeds of Trust.”
    
   GILMER, J.,

delivered the opinion of the court:

The court is of opinion, that by the execution and recording of the deeds of trust in the record mentioned, the legal title to the property embraced by them vested in Jonathan Christian, the trustee; that his delay in accepting the trust and expression of doubts on the subject, (under the circumstances of this case,) created no bar to his subsequent acceptance; and that the execution of the power of attorney to H. A. Christian and the institution of the action of detinue for the negro in controversy were unequivocal acts of acceptance of the trust, and placed him in the same condition as if he had accepted it in the beginning; consequently, the court is of opinion, that the court below erred in giving each of the instructions asked for by the defendant in that court. Therefore, (the court deeming it unnecessary to express any opinion on any other point in the cause,) it is considered that the said judgment be reversed with costs. And it is ordered, that the verdict of the jury be set aside and the cause remanded for a new trial to be had therein, on which the said instructions, if again asked for, are not to be given.

Judgment reversed.  