Jasper Strong, Appellant, vs. George Willis, et al., Appellees, 3 Fla. 124

BALTZELL, J. This is a suit in Chancery by the complainant, Strong, alleging Indebtedness of the late Alexander J. Dallas, to an amount of nearly six thousand dollars, through a contract made in the summer of 1838, for the erection and finishing a dwelling house on lot 276, in the city of Pensacola. The bill alleges that in December of that year, a deed of trust was executed by the said Dallas in behalf of -his wife and children, whereby the said lot -and building and property were conveyed to complainant and the defendant, Willis, as trustees for the use and benefit of the said wife and children.

Complainant alleges that “ he became a party to the deed of trust by accepting the trust, but with no intention on his part to surrender any legal or equitable right which he might have to enforce against the property of the said Dallas, the payment of his debt abovementioned, and set forth,” and he asks for a sale of the trust property. The defendants demur to the bill, and raise the simple question whether it is competent for a party, after having by his signature, accepted the trusts of a deed, thus to complain of it as fraudulent.

It is purely a question of law, and to be decided as if the facts presented by the bill had been admitted by the answer. The office of trustee, his duty, rights, powers, and obligations are now well ascertained and understood (having been declared by the Courts in such terms) as to create an exclusive branch of equity jurisprudence. Amongst the rules established, we recognize the following : — “ The trustee holds the estate for the cestui que trust, and to effect the purposes and objects declared by the deed.” He cannot renounce, after acceptance, but must execute its provisions.

He is bound to convey, at the direction of his cestui que trust, and may be compelled by suit to fulfil any particular act of duty. If the estate is assailed, his duty is to protect it —he may be enjoined from committing a breach of trust, and his laches or tort shall not effect the cestui que trust. Bearing in mind then, these principles, let us examine the trust deed in the case under consideration, to ascertain the duties imposed and the trusts and covenants assumed by the trustees, and to see how far the individual right of one of them, as presented by this bill, may be consistent with them.

The deed is in the usual form, and as a copy of it will be given by the reporter, we refer only to the material parts of it. The conveyance is declared to be in “ trust for the sole and separate use, benefit and behoof of the sole and separate use of the wife and children, free and exempt from the debts, contracts and incumbrances of the said Alexander J.

Dallas, free from any control, right, title interest or property of the said Dallas,” and provides that the rents and profits of the lands, &c., shall be appropriated to the support and maintenance of the said wife and children.” This, undoubtedly, is an express declaration on the part of Willis and Strong, the trustees signing the deed, that the property shall not be disposed of to pay the debts of the grantor., amongst which clearly would be embraced debts due to the trustees as well as to any one else.

The property is not only not to be subject to the debts of Dallas, the grantor, but the trustees engage that it shall be appropriated to the support of the family. If assailed by a stranger, the duty of such trustee would be to defend and protect the property, and he would be compelled to do so. Does he occupy a more favorable position, as far as his own rights are concerned ? Can he, who has undertaken by his solemn act to defend this property, and carry into effect its objects and purposes of express and specific character, be permitted himself to turn round, repudiate the trust, and defeat and destroy it ?

If the design of complainant was, as he states it to have been in his bill, not to surrender any equitable or legal right which he might have to the property, he should have insisted upon a declaration to that effect.in the deed, and his neglect to do so, should be regarded as a waiver on his part. The deed is equivalent to a covenant or agreement on his part, that the property should be free from his own debt, as it undertakes to defend it generally against the debts, contracts and incumbrances of the grantor.

Not a case has been exhibited to us in which a trustee has been permitted in a Court of Equity to occupy such an anomalous position ; and to allow it, would' be to assume a position directly in opposition to all the leading and governing principles and rules upon which this branch of equity has been constructed. This would, indeed, be giving judicial sanction to such a design. One of the rules alluded to above is, that, in attempting an injury to the trust property, the trustee acts without warrant, and in breach of his duty.

What more serious injury — what more intolerable breach of trust, than to assert a right in the trust property, for his own individual purposes ? — to ask that property, which, by his own act, has been confided to his care, to guard and protect for the wife and children of the grantor, shall be sold and appropriated to his own use ? Another principle, common to this as well as to every other branch of the law, is, that a man should not be permitted to allege his own fraud. If decedent was in debt, so as to make this deed a fraud as to creditors, complainant did wrong in aiding and sanctioning the act.

It cannot be regarded as a fraud as to himself — for by his free act, his solemn deed, he has consented, as he had a full right to do, that the property should not be subject to his debts, but that he would look to other means for payment. The case of a purchaser, for a valuable consideration, with notice of a prior fraudulent sale, is not that of complainant. As to him, such sale is in law a nullity, as if it never had been made. It is not a matter to which he is committed, and with which he had any connection or concern.

It would be different, if such a purchaser had been pledged by solemn deed to sustain the very claim which he was asking leave of the Court to assail. It may be a case of hardship for the complainant; but it is not the province of the Courts nor of the law to compensate the deficiencies of parties, or repair the consequences attending their neglect or inattention.

If we mistake not, a law of the State provides a lien to mechanics, which might have been available to complainant— -or he might, before undertaking the work, have required security— -or, by declining the office of trustee, he might have occupied the position of a creditor, so as to assert the defects or fraud in a deed or deeds made to his prejudice or injury; but he cannot be both trustee and assailant of the trust deed’; he cannot be both maintainer and holder of the legal title, and the asserter of its invalidity.. For these reasons, we think the decree of the Court below must be affirmed, with costs.