McFadden v. Drake

1. A deed in 1846 was to a trustee to hold for the sole and separate use of a married woman, she alone to take the rents, &c., and after her death to the heirs of her body by her then husband, with power to the trustee to sell and convey in fee simple the premises in the deed as the wife, “ by writing under her hand and seal and duly acknowledged at any time, shall during her natural life direct and appoint.” The husband and wife, without the trustee, by deed duly executed and acknowledged, conveyed the premises: Held to be a valid appointment under the power in the trust deed. 2. The grantee in the deed being the wife’? appointee could compel the trustee to convey the legal estate to him. 3. Before such conveyance by the trustee, the wife’s appointee had an equitable title under which he could defend his possession in ejectment.

Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1875, No. 89. This was an action of ejectment, commenced to the January Term 1874 of the court below, by James B. McFadden and others, children and heirs at law of Lodiski McFadden, deceased, against Abel Drake and others. Eleazer Rockwell, being tbe owner of the premises in dispute, by deed dated July 1st 1846, for the consideration of $200, conveyed them to George R. Wilson, “ for the uses and upon the trusts (thereinafter) mentioned,” viz.: In trust “for the sole and separate use'of Lodiski McFadden, the wife of John W. McFadden, of, &e., so that she alone, or such person as she shall appoint, shall take and receive the rents, &c., and' so as her said husband shall not in anywise intermeddle therewith; and from and after the decease of the said Lodiski McFadden, in trust, for the use of the heirs of the body of the said Lodiski McFadden, by the said John W. McFadden, begotten or to be begotton, for ever, with power to the said George R. Wilson to sell and convey in fee simple the whole or any part of the aforesaid premises and appertenances to any person or persons, and for such sum or sums of money as the said Lodiski McFadden, by writing under her hand and seal and duly acknowledged at any time, shall, during her natural life, direct and appoint.” * * * Wilson, the trustee, paid nothing, nor did he do anything under the deed. On the 8th of July 1864, McFadden and wife conveyed to John Ross part of the premises; Ross conveyed, September 7th 1864, to Burdick, and on the 10th of May 1866, McFadden and wife conveyed the remainder to Burdick. Both the deeds of McFadden and wife were in due form and properly acknowledged. Wilson, the trustee, took no part whatever in the conveyances. McFadden died in 1870, and his wife Lodiski, in 1872. Burdick’s title was in the defendants at the commencement of this suit. Under the foregoing facts the court, Lowrie, P. J., charged, that “the conveyances by McFadden and wife to Ross and Bur-dick are a valid appointment of the fee of the land under the trust for her.” The verdict was for the defendants. The plaintiffs took a writ of error, and assigned the charge of the court for error.