February 28, 1924. The opinion of the court was delivered by This appears to be a friendly suit, instituted by the plaintiff to enforce specific performance of a contract entered into by her and the defendant for the sale and purchase of a certain lot in the city of Union. The plaintiff is ready to convey, and the defendant to pay the agreed purchase price. Some question, however, as to the validity of the title which she proposes to convey having arisen, the real purpose of the suit is to determine that question. The matter was heard by his Honor, Judge Johnson, upon an agreed statement of facts, a controversy submitted without action as provided for in the Code (§ 675, Code Civ. Proc., 1922) resulting in a decree for the plaintiff, from which the defendant appeals.
It appears that in October, 1892, the property of which the lot in question is a part was sold under order of the court of common pleas in the case of A.G. Rice against MaryL. Dawkins et al. in settlement of the estate of the late Judge T.N. Dawkins, a circuit judge of this State elected in 1865, and retired in the reorganization of the courts under radical rule in 1868. At that sale the property was bid off by Hon. Robert W. Shand, a distinguished lawyer of this State, an honorable counselor, and for nearly 20 years *Page 260 the reporter of this court. He did not comply with the terms of sale, for some reason, until March 23, 1893, at which time he used in so doing funds belonging to Miss Charlotte Poulton, a sister of Mrs. Dawkins, widow of the judge, and Miss Mary Lily Dawkins, an adopted daughter of Judge and Mrs. Dawkins. (Mary Lily Dawkins subsequently married one T.P. Miller; after his death she married B.F. Piegler, and she is the plaintiff in the present action.) On the same day, March 23, 1893, Mr. Shand executed a declaration of trust evidently coincidently and as a part of the transaction by which he acquired title, with the indorsed consent and at the request of Miss Charlotte Poulton and Miss Mary Lily Dawkins, whose money, as stated, supplied the consideration for the deed executed by the officer of the court to Mr. Shand.
The deed and the declaration of trust covered other real estate than that involved in this proceeding, but, as the questions at issue relate only to what is referred to as the "residence in the town of Union," of which the lot in question is a part, it will not be necessary to refer to such other real estate.
As to the "residence in the town of Union," which comprised not only the lot upon which the residence was located, but a body of land adjacent, all of which was known as the "Dawkins Place," by the declaration of trust, Mr. Shand held it as trustee for the following uses and trusts:
(1) To permit Mrs. Dawkins, the widow, Miss Charlotte Poulton, and Miss Mary L. Dawkins (now Mrs. Piegler, the plaintiff) to occupy the residence as a home for them during their joint lives, for the lives of the two who might survive the one dying first, and for the life of the last survivor.
(2) That Miss Mary L. Dawkins (Mrs. Piegler) should receive the rents and profits of the adjacent lands, pay the taxes upon the residence and upon the lands, and appropriate *Page 261 the remainder to her own purposes during the term of her natural life.
(3) That if Miss Charlotte Poulton survived Miss Mary L. Dawkins (Mrs. Piegler) she should receive the rents and profits upon the same terms as provided for Miss Mary L. Dawkins.
(4) That upon the deaths of both Miss Charlotte Poulton and Miss Mary L. Dawkins, the said rents and profits should be paid to such persons as Mrs. Mary P. Dawkins, the widow, in the event that she should survive them, should from year to year designate.
(5) That upon the death of the last survivor of these three ladies (Miss Poulton, Miss Dawkins, and the widow Mrs. Dawkins) the residence and adjacent lands should be discharged of all trusts and go to such persons and in such proportions as may be appointed by Miss Mary L. Dawkins by will.
(6) That if Miss Mary L. Dawkins (Mrs. Piegler) should die without making such appointment, at the death of the last survivor of the three ladies named the property shall go to such persons and in such proportions as Mrs. Mary P. Dawkins, the widow, "may appoint or may have appointed by her last will and testament," free and discharged of all trusts.
(7) The trustee reserved the right to sell any part of the property he might deem expedient or at the request of the three ladies of the survivors or last survivor, and to reinvest the proceeds upon the same trusts.
Both Mrs. Mary P. Dawkins, the widow, and Miss Charlotte Poulton died many years ago. The dates of their deaths are not given in the record for appeal, but it appears that they died more than 10 years prior to the present proceeding, which was begun in 1923.
By appropriate proceedings J.F. McLure was substituted as trustee in the place of Mr. Shand; subsequently T.P. Miller, first husband of the plaintiff, was substituted for Mr. McLure, and later W.W. Johnson for Miller. *Page 262
In the year 1920, January 26th, an action was instituted by the plaintiff in the present action, Lillie D. Piegler, in the court of common pleas for Union County, against W.W. Johnson, as trustee, claiming that, as the last survivor of the three ladies, she had the absolute right and power to make disposition of the property by will; that there were no duties to be performed by the trustee except to sell such part as he might deem expedient, or when requested as stated above, and praying judgment that the trust be declared ended and that the title to the property be declared vested in her and discharged of all further trusts, or that the trust be declared executed and the title vested in her as cestuique trust.
The trustee, W.W. Johnson, who was the only party defendant to the action, made answer to the complaint, admitting the material allegations, disclaiming any desire on his part to retain the trusteeship, and specifically expressing his desire to be relieved of it, but questioning the effect upon the title of granting the relief prayed for.
No order of reference appears to have been taken and no testimony was offered. On December 30, 1920, his Honor, Judge Sease, signed a decree consented to by the attorneys of record for the several parties, in which it was adjudged:
"That the objects and purposes of the said trust have been accomplished, and that the trusts as declared in the said declaration of trust hereinabove referred to and set forth are hereby declared and adjudged to have been ended and no longer of binding force and effect, and that the legal as well as the equitable title to so much of the real estate affected by the declaration of trust which has not heretofore been sold and conveyed by the several trustees, is hereby declared and adjudged to be vested in the plaintiff, Mrs. Mary Lily Dawkins Piegler, freed and discharged of all further trusts."
The trustee was ordered discharged upon his accounting. *Page 263
His Honor, Judge Johnson, was clearly right in holding that the statute did not execute the use, for the reason stated by him and upon the authorities cited, to which may be added Boney v. Cornwell, 121 S.C. 256,113 S.E., 686, and Black v. Harman, 127 S.C. 359;120 S.E., 705.
If the statute did not execute the use, the trust was active, with certain defined duties to be performed by the trustee. It was not within the power of the court, in the action brought by Mrs. Piegler against the trustee, by a consent decree, after the trustee had raised the very pertinent objection stated above to completely annihilate the trust, discharge the trustee, and vest the fee-simple title in Mrs. Piegler, where the declaration of trust clearly shows it was never intended to be. The decree of Judge Sease was therefore coram non judice, and void. Mauldinv. Mauldin, 101 S.C. 1; 85 S.E., 60. Cagle v. Schaefer,115 S.C. 35; 104 S.E., 321. Gaines v. Sullivan, 117 S.C. 475;109 S.E., 276.
Assuming, however, that the decree of Judge Sease is res adjudicata it is only so between the parties to that proceeding, the trustee and the cestui que trust; and the question remains, the substantial point in the controversy, whether or not Mrs. Piegler can convey to her purchaser a marketable title in fee simple against all persons who might hereafter set up a claim to the property. Such persons, of course, would not be bound by the decree of Judge Sease vesting the fee-simple title in Mrs. Piegler. So that, as to them the matter must be considered as if that decree had never been signed. What, then, is the situation? Mrs. Piegler never had the fee-simple title to the property; she had only an equitable life estate with the power of appointing by will the persons who were to take the fee-simple title. If she should fail to exercise this power of appointment her interest would terminate with her death. Rubey v. Barnett, 12 Mo., 3; 49 Am. Dec. 112. *Page 264 Johnson v. Cushing, 15 N.H. 298; 41 Am. Dec. 694.Graham v. Whitridge, 99 Md., 248; 57 A. 609;58 Atl., 36; 66 L.R.A., 408. Pulliam v. Byrd, 2 Strob. Eq., 134.Scott v. Burt, 9 Rich. Eq., 358. Aaron v. Beck, 9 Rich. Eq., 411. Wilson v. Gains, 9 Rich. Eq., 420. Smith v.Hilliard, 3 Strob. Eq., 211. Boyd v. Satterwhite, 10 S.C. 45.Withers v. Jenkins, 14 S.C. 597. Blount v.Walker, 31 S.C. 14; 9 S.E., 804. Sires v. Sires, 43 S.C. 266;21 S.E., 115. Humphrey v. Campbell, 59 S.C. 39;37 S.E., 26.
What, then, would become of the fee-simple title in the event that Mrs. Piegler should die without having exercised the power of appointment? The foregoing cases hold that it would revert as intestate property, in the absence of other disposition by the instrument, to the estate of the donor. But in this case there is no donor; the land was purchased with the funds of Miss Charlotte Poulton and Mrs. Piegler; the declaration of trust so states; hence, upon the failure of Mrs. Piegler to exercise the power of appointment, the title would revert to the trustee as a resulting trust for the benefit of the heirs of those whose funds were invested, Miss Poulton and Mrs. Piegler. The latter's deed would of course conclude her heirs, but in that event the purchaser would become a tenant in common with the heirs of Miss Poulton, who were not parties to the former proceeding and not bound by it.
But if Mrs. Piegler, after having made the deed to the present purchaser, should exercise the power of appointment in favor of others, upon what principle could they be held estopped by her deed, when she did not have the fee-simple title or the right to convey the property by deed?
"It is well settled that where the instrument creating a power specifies the nature of the instrument by which it may be executed, as where it is to be executed by will, or by deed, the power can be exercised only in the manner *Page 265 specified." 21. R.C.L., 793. Dumas v. Carroll, 112 S.C. 284;99 S.E., 801.
And if she should exercise the power of appointment by designating this lot to the purchaser, what assurance would the purchaser have that the will may not be changed? Whether or not she could make a binding contract by which she would designate the purchaser as the devisee of the lot is a question not before the court.
Another matter: The declaration of trust provides that, if Mrs. Piegler should fail to exercise the power of appointment, the disposition of the property should be subject to the will of Mrs. Dawkins, the widow. Whether she died testate or intestate has not been made to appear on the record.
With reluctance, but without doubt, we are constrained to hold that Mrs. Piegler, under the circumstances, cannot tender a marketable title to the purchaser.
The judgment of this court is that the decree of the circuit court be reversed, and that the complaint be dismissed.
MESSRS. JUSTICES WATTS, FRASER and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.