Shaw University v. Durham Life Insurance

DeNNy, J.

The sole question presented on this appeal is simply this : Does the plaintiff have the power to execute a valid deed of trust on the premises conveyed by the above deeds ?

Ordinarily the power to sell given an agent, attorney or trustee, does not include the power to execute a mortgage.

Shannonhouse v. Wolfe, 191 N.C. 769 , 133 S.E. 93 . “The weight of authority is to the effect that a mere power of sale expressly conferred in an instrument does not, by implication, confer authority to mortgage, in the absence of anything in the instrument, read in the light of the surrounding circumstances, to indicate a contrary intent.” 41 Amer. Jur. 813 .

Even so, a different rule applies when the trust is not created for the benefit or profit of the donor or grantor, but for the benefit of the donee.

Shannonhouse v. Wolfe, supra. Brogden, J., in discussing this question in the above case, quoted with approval from the opinion in Hamilton v. Hamilton, 149 Iowa 329 , where it is said: “The language creating •such a power (that is for the benefit of the donee) is to be liberally construed to promote the purpose or intent of its creation, and, if the power to sell is amplified by other words of general meaning, and the circumstances under which the gift is made be not such as to forbid that construction, the authority to mortgage for the purpose expressed in the writing may be inferred.”

The property involved herein was not a gift but a purchase by the 'Trustees from Daniel Barringer, for a consideration of $13,000.00. The property was not conveyed in trust for the benefit of the grantor, but was ■conveyed to Trustees, the grantees therein, “for the uses and purposes of an educational institution and the proceeds of the rental or sale thereof” were to be “perpetually devoted to educational purposes.”

*530 There is nothing in the Barringer deed to indicate the grantor intended to convey a conditional estate, or that the Trustees intended to purchase or create such an estate. There is no clause of re-entry, no limitation over or other provision which was to become effective upon condition broken. The property was conveyed in fee simple for certain expressed purposes, and authority was given to use, rent or sell it. .And the only limitation as to its use or disposition, is to the effect that the property or the proceeds derived from the rental or sale thereof, “shall be perpetually devoted to educational purposes.”

It is said in Hall v. Quinn, 190 N.C. 326 , 130 S.E. 18 , “A clause in a deed will not be construed as a condition subsequent unless it expresses in apt and appropriate language the intention of the parties to this effect (Braddy v. Elliott, 146 N.C. 578 ) and a mere statement of the purpose for which the property is to be used is not sufficient to create such condition.

Hunter v. Murfee, 126 Ala. 123 ;

Fitzgerald v. Modoc County, 44 L.R.A. (N.S.), (Cal.), 1229;

Wright v. Board of Education, 152 S.W. 543 ;

Forman v. Safe & Trust Co., 80 At. (Md.) 298;

Brown v. Caldwell, 48 A.R.

(W.V.)

376;

Highbee v. Rodeman, 28 N.E. (Ind.) 442;

Raley v. Umatilla County, 3 A.S.R. 142.”

. The Barringer deed made it mandatory that the grantees therein apply to the General Assembly of North Carolina for a Charter or Act, incorporating the educational institution now known as The Shaw University. And when such corporation was created, the grantees in the Barringer deed were required, under the terms thereof, to convey the property to the corporation. The corporation was created as contemplated and the property conveyed to it as required. Moreover, the plaintiff has the express power granted in its charter to execute mortgages and deeds of trust on its property, in order to carry out the purposes for which it was created; and we find nothing in the deeds under consideration, or in the charter of the corporation or the amendment thereto, that we deem a restriction on the power of the plaintiff to execute a deed of trust on the premises conveyed in the aforesaid deeds, as security for the loan which it seeks.

Hall v. Quinn, supra; Raleigh v. Trustees, 206 N.C. 485 , 174 S.E. 278 ;

Ferrell v. Ins. Co., 211 N.C. 423 , 190 S.E. 746 ;

Trust Co. v. Heymann, 220 N.C. 526 , 17 S.E. 2d 665 .

The judgment of the court below is Affirmed.