
    No. 1530.
    Scarborough v. Spencer.
    November Term, 1883.
    
      March 10th, 1884.
    
      C. E. Bpenoer, for appellant. Haynsworth & Cooper, contra.
   Opinion by

Mr. Chief Justice Simpson,

This was a controversy submitted without action, raising the question whether defendant was bound to perform his written agreement-with plaintiff, as trustee, to purchase a certain tract of land. The land had been conveyed to the plaintiff and his heirs in trust to pay from the rents, &c., a debt to J. and certain mortgages, and then from the income, <fcc., to pay for the support and maintenance of the family of C. S. and the education of his children — “ it being understood that, with the consent of the said C. S., in writing, the said trustee shall have power to sell all or any portion of those several premises to carry out the trusts above created; and, also, that the said trustee shall have the authority to sell any portion of said lands, to change the investment, or re-invest the proceeds of sale in other property, and to do any act in regard to the said property now conveyed, with the consent of the said C. S., that the said C. S. could do were the fee-simple vested in him; and further in trust, after the death of the said C. S., all legal incumbrances on said lands being first satisfied, to divide said lands, or the proceeds of the sale of said lands, among the wife and children of the said C. S., or among the children in case the said C. S. should leave no wife, according to the statute of distributions of the State of South Carolina.”

The trustee paid the debts, and, by written consent of C. S., contracted in writing to sell the land to defendant. In the written consent of C. S., given to the trustee to make the sale, the proceeds were ordered to be applied to certain debts and liabilities contracted by the said C. S., or for the support and maintenance of his family, and of expenses of management of the trust property, the balance to be divided between his wife and children. Defendant refused to comply, alleging that the purpose of the sale was to work a revocation of the trust deed, which the trustee could not do. The Circuit judge (Cothran) decreed specific performance of the contract, and on appeal this decree was affirmed.  