This is a petitory action for land. Plaintiff claims title under White Turpin, in his lifetime a resident of Mississippi, who, on the 7th of May, 1840, conveyed to Samuel Coburn and Joseph Dunbar, also residents of Mississippi, hy deed executed and recorded in that State, this land, with other tracts, situated in Louisiana, in trust, for the security of sundry persons named in the deed, who
On the 16th November, 1843, Samuel Coburn, made a deed of conveyance of the land to David G. Humphreys and Charles D. Hamilton, in which deed it was recited that the said Samuel Coburn, in his capacity of trustee, aforesaid, had advertised and sold the said land, at public auction, to the said Humphreys and Hamilton, as the highest bidders. David G. Humphreys and Charles D. Hamilton conveyed their title to plaintiff, on the 9th October, 1845.
A good deal of discussion has arisen at bar, upon the legal validity of deeds of trust made in Mississippi, to affect lands in Louisiana; and some decisions of our predecessors, upon that point, have been quoted, which do not appear to be very easily reconcileable. See 3 An., 216; 4 An., 259; 5 An., 679.
But we think that this question does not embarrass.the decisionof the present case. Trusts, as we learn from the writers who have treated the subject ex professo, are extremely various in their objects. That which is presented to us in this record may, without the least violence, be viewed as a power of attorney to sell lands, which, assuredly, is not such a form of trust as can be supposed to conflict with our peculiar jurisprudence.
Viewed in this light, the objection urged by the counsel of defendant against the conveyance from Coburn to Humphreys and Hamilton, appears to be well taken. The mandate was joint, and could not he effectually exercised by one of the co-mandataries alone. 2 L. R., 276.
In the deed of trust under consideration, the power to sell is given to two persons, or to the survivor of them. Now, not only was the co-mandatary or co-trustee of Ooburn, Joseph Dunbar, not dead, when Ooburn took upon himself to make the sale alone, but it is proved, as well by the recitals of the deed, as by the testimony of Ooburn, examined as a witness for plaintiff, that Dunbar declined to act under the deed of trust.
This defect in the title of plaintiff, might possibly have been cured by some subsequent act of Turpin, which would have amounted to a ratification. But nothing of the kind appears. On the contrary, the heirs of Turpin afterwards sold this land to another party.
And it is proper here to observe, that under the circumstances of the case, there is very little room for surprise at the heirs of Turpin having treated this land as their own, notwithstanding the sale by Ooburn. The deed of trust specifies liabilities of Turpin nominally to the very large amount of one hundred and thirty thousand dollars. Yet it is not stated that one dollar of this amount is due to any of the beneficiaries. They figure merely as security for the payment of notes, held by different banks.
The property conveyed in trust, embraced large quantities of land in Louisiana and Mississippi; besides many slaves and much other personal property in the latter State. The trustees had only the right to make sales of this property upon the requisition of the beneficiaries. And the beneficiaries had only the right to make such requisition in case of having made payments for Turpin under their fidejussory obligations. The deed of Ooburn to Hum-phreys and Hamilton recites, indeed, that a requisition had been made for the
Judgment of the District Court reversed, and judgment for defendant, with costs in both courts,