Sarah Jacobs, plaintiff below, appellant here, seeks to avoid the trust sale and deed under which appellees claim, made by Brashear, substitute trustee for Grainger, for the reason that Brashear was not legally appointed: first, because the contingency had not happened which authorized Brewster to make the appointment; second, because the appointment was not made under seal.
The trust deed provided that in the event Grainger should be unwilling or unable to act in carrying out the trust, then for the appointment by him of a substitute trustee.
And in the event Grainger should refuse to appoint a substitute trustee, then it should be lawful for the holder of the note due and unpaid to appoint said substitute trustee, under his hand and seal, and that his acts should be as effectual and binding as though performed by the original trustee.
The testimony showed that prior to the sale under the trust deed, Grainger, the original trustee, died without having appointed a substitute, and' that Brewster, by whom Brashear was appointed, was the holder of the note, and that the appointment was made under his hand simply, and not under his hand and seal.
There is no question as to the validity of the original trust deed, and the principle which underlies the above issues is analogous to that which governs in cases of the defective execution of a valid power.
*80As equity looks to the substance and not to the shadow, the defective execution of a valid power will be sustained in favor of creditors and purchasers for value, and others, not mere volunteers, when the intention of the parties clearly appears and has been substantially carried out, and when the defect complained of is a technical one, and which it may reasonably be presumed was not occasioned through fraud and did not result in legal injury to the parties interested. 1 Story’s Eq. Jur., §§ 94-97; Id., §§ 170-174; 2 Washb. on R. P., 335, sec. 8.
In our opinion, the stipulation in the deed of trust in regard to the appointment of a substitute trustee comes within that class known as directory powers, in which some degree of latitude is allowed, rather than that class known as strict powers, to be executed only under the circumstances prescribed in the instrument. Perry on Trusts, § 490.
The death of Grainger rendered him wholly unable to act as trustee or to appoint a substitute trustee, and although there was not a technical refusal to make such appointment, yet there existed, in effect, what was equivalent to such refusal.
The evident intention of the parties was, that a sale of the property might be made through a trustee, without the formality, delay and expense of a judicial proceeding, and we are of opinion that, substantially, in the light of this intention, the contingency happened which authorized Brewster to appoint the substitute trustee.
The mere omission of a seal would not render invalid the execution of a power otherwise valid. 2 Sugden on Powers, marg. p. 125, sec. 27; 1 Story’s Eq. Jur., § 97; Id., § 174.
The case of Dormer v. Thurland, 2 Peere Williams, 506, cited by appellant, to the effect that the omission of a seal in the execution of a power would render it invalid, was greatly weakened as authority by the subsequent opinion of Lord Mansfield in Earl of Darlington v. Pulteney, Cowper, 268, and cases there cited.
Whatever might once have been the necessity of a seal to give solemnity and authenticity to the execution of instru*81ments, this necessity, as to contracts between individuals, has passed away, and the reason having ceased, express legislation in this and other states has dispensed with seals as a useless formality.
Our statute in force at the date of this transaction, provided that “ No scroll or private seal shall be necessary to the validity of any contract, bond, or conveyance, whether respecting real or personal property, except such as are made by corporations; nor shall the addition or omission of a scroll or seal affect the force and effect of the same. * * * ” Paschal’s Dig., art. 5087.
As said by Mr. Perry, “ Why any effect should be given to a form that has ceased to be a solemnity would be hard to explain on principle, and is equally uncertain upon the authorities.” Perry on Trusts, § 111.
We are of opinion that the omission of a seal to the appointment of Brashear as substitute trustee was not such defect in matter of substance as should vitiate his sale.
It may be added, that the testimony shows that the property was community; that before the sale it had been abandoned as a homestead; that both the plaintiff, Mrs. Jacobs, and her husband, not only failed to take proceedings to prevent the sale, but acquiesced in it; that the sale was fairly made, and seemingly for a fair price, $1,000, the amount of the note; that it does not appear but that this note was given up and would now be barred by limitation; and it does appear that the property long since has passed into the hands of successive purchasers.
To set aside the sale under these circumstances for a mere technicality, would be in violation of plain principles of justice and equity.
This disposition of the case renders it unnecessary to pass upon the other points presented. Judgment affirmed.
Affirmed.