Gratt. 592; Quarles v. Lacy, 4 Munf. as complete as the contract for the sale 251. But where a sale is set aside, solely on the ground that the trust subject was purchased by the trustee at his own sale, the trustee is entitled to be reimbursed the amount paid by him, and may hold the legal title to the trust subject as security for the amount. He is entitled to interest, and the value of his permanent improvements, if any, and is to be charged with rents and profits. Harrison v. Manson, 95 Va. 593, 29 S. E. 420; Smith v. Miller, 98 Va. 535, 37 S. E. 10. Where a trustee sells land and bids it in for the creditor, but no conveyance or memorandum in writing of the purchase is made, nor possession taken, but the possession remains in the former owner, under an agreement, as it is said, with the trustee, who is the agent of the grantor, that the said owner shall take it at the bid, the purchase is invalid, and the creditor will not be charged with the land at the price at which it was bid in. William & Mary College v. Powell, 12 Gratt. 372; Hope 7. Valley City Salt Co., 25 W. Va. 789. (7) When Sale Complete. A contract of sale between a trustee in a deed of trust and a purchaser is complete, when the trustee, selling at auction, knocks the land down to the bidder, makes a memorandum of the sale and its terms and signs the same. Atkinson v. Washington and Jefferson College, 54 W. Va. 32, 46 S. E. 253; Fleming v. Holt, 12 W. Va. 143. As to waiver of failure to comply with statute of frauds, see the title FRAUDS, STATUTE OF, vol. 6, p. 533. In a sale by a trustee, the court does not accept the bid of the purchaser, but it is accepted by the auctioneer, when he knocks the land down, and on the making by him of a memorandum of the sale and its terms, signed by the auctioneer, the contract for the sale is made by a commissioner is when the court accepts the bid by confirming the sale. After such knocking down of the land by the auctioneer and the making of such memorandum, the purchaser must accept the deed and pay the purchase money, though he does find the title defective. He must, if he wishes to do so, investigate the title in this case, as in the other, while the contract is incomplete, that is, in the last case, before land is knocked down to him. Fleming v. Holt, 12 W. Va. 143; Atkinson v. Washington and Jefferson College, 54 W. Va. 32, 46 S. E. 253. f. Report of Sale. A sale made by a trustee will not be set aside because of his failure to make the report required by § 3 of ch. 87 of the Code giving an inventory of the property sold, and an account of the sale. Atkinson v. Washington and Jefferson College, 54 W. Va. 32, 34, 46 S. E. 253. 8. Deed to Purchaser. Nature of Warranty to Which Purchaser Entitled.-A purchaser of lands at public auction, made by a trustee, can only require a deed from the trustee with special warranty. Fleming v. Holt, 12 W. Va. 143. A purchaser of land at a public sale, made by a trustee, must look to the title of the grantor of the land, and he is entitled only to a deed with special warranty of title. He can not look to the trustee for a good title, for in making the sale he is but an agent; he can not look to the creditor, for he sells nothing, and is merely to receive the proceeds of the sale. Fleming v. Holt, 12 W. Va. 143, 162; Petermans v. Laws, 6 Leigh 523, 529; Saunders v. Pate, 4 Rand. 8; Sutton v. Sutton, 7 Gratt. 234, 237; Findlay v. Toncray, 2 Rob. 374; Goddin v. Vaughn, 14 Gratt. 102, 117. Mistake as to Estate or Interest Conveyed.-A house and lot conveyed to Mrs. M. and her offsprings; Mrs. M. and her husband convey the same to a trustee and his heirs, to secure a debt; the trustee advertises the land to be sold in pursuance of the deed, but thinking that Mrs. M. had only a life estate, he proclaims that only an estate for her life will be sold, and that interest is sold to P. but the trustee conveys the whole fee simple; eight years after, M. and wife file a bill against P. to correct the mistake; and this bill is taken pro confesso. It was held, that, as the bill was taken for confessed, immaterial to inquire whether parol evidence is admissible to prove the mistake of the trustee in selling only an estate for Mrs. M.'s life, and then conveying the whole fee; and the mistake is to be corrected by decreeing that P. shall reconvey to Mrs. M. the remainder in fee expectant on her own life. Pullen v. Mullen, 12 Leigh 434. h. (1) Remedies on Failure of Purchaser Remedy against Trustee Failing to Trustees having sold slaves, a part of The cestui que trust may bring a suit in chancery for the specific execution of a contract, made by a third party with the trustee in a deed of trust, for the purchase of a tract of land conveyed by the deed of trust, and make the trustee and purchaser of the land and grantor in the deed of trust defendants, though the more proper mode of instituting such suit would be for the trustee and cestui que trust to unite as plaintiffs. Fleming v. Holt, 12 W. Va. 143. Suit to Compel Execution of Deed A. institutes a suit in chancery, for the purpose of compelling the execution to himself of a deed by trustee for land sold under a deed of trust, and to have a decree over against the administrator of the first assignor (there being two) In such a suit, if the assignor of a of the bonds secured by said deed of bond is the grantor in the deed of trust. trust, for the unpaid balance due on the obligors in the bond need not be said bonds, and the bill makes defend-made defendants. Fleming v. Holt, 12 ants, the trustee, the administrator of W. Va. 143. pur the first assignor, and also the second In such a suit if any portion of the assignor. It was held, that chancery has jurisdiction of the cause; and that § 16 of ch. 99 of the West Virginia Code in such a case does not affect the jurisdiction. Atherton v. Hull, 12 W. Va. 170. That so much of the decree as dismissed the bill as all the defendants, except the trustee, be affirmed, with costs to the appellee, the administrator of the remote assignor, he being the party substantially prevailing; but so much of the decree as dismissed the bill as to the trustee is reversed, and the cause remained, to have the deed executed by the trustee delivered to the plaintiff. Atherton v. Hull, 12 W. Va. 170. purchase money due from the Such a suit may be brought against the purchaser of land sold at public auction by the trustee, on the refusal of the purchaser to comply with the terms of sale, without the trustee selling the land again at auction; and if the trustee made a second sale, no such suit would lie against the first purchaser. Fleming v. Holt, 12 W. Va 143. (3) Subjection of Land in Equity. The proper remedy for the collec tion of the purchase money due from of a debt, though authorized to exeand unpaid on the property purchased cute the trust upon the death of the at the trustee's sale (the judgments trustee, is clothed with only a naked recovered at law on his bonds having power, and his deed does not invest a proved unavailing), is by a suit in chan- purchaser from him with title unless cery to subject the property itself. the conditions exist which authorize a Ogden v. Davidson, 81 Va. 757, 761, sale by him, and the sale is made in citing Nulton v. Isaacs, 30 Gratt. 726; accordance with the terms of the trust. Thurman v. Morgan, 79 Va. 367. The burden of proving these facts is upon the party claiming under such deed, and the recitals of the deed, un i. Title and Right of Purchaser. (1) Sale under Void Deed. facie evidence to such facts. Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. 232. In General. Where a deed of trustless made so by statute, are not prima is invalid because defectively acknowledged, a sale made by the trustee is a mere nullity, and the deed given to the purchaser in pursuance of the sale conveys no title. Schmertz v. Hammond, 47 W. Va. 527, 35 S. E. 945. As Giving Color of Title Which Will Ripen into Title by Adverse Possession. -See the title ADVERSE POSSESSION, vol. 1, p. 207. (2) Irregular Sale under Valid Deed. Effect of Failure of Trustee to Comply with Terms of Trust Deed. The trustee in a deed of trust takes a legal, though a defeasible title, and a deed from him to a purchaser conveys an absolute estate in a court of law, whether the conditions of the trust deed have been complied with or not, though a different rule prevails in a court of equity. Taylor v. King, 6 Munf. 358, 8 Am. Dec. 746; Harris . Harris, 6 Munf. 367; Pownal v. Taylor, 10 Leigh 173, 183, 34 Am. Dec. 725; Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. 232; Fulton v. Johnson, 24 W. Va. 95. (3) Right to Growing Crops. See the title CROPS, vol. 4, p. 95. (4) Notice of Rights of Others as Affecting Rights of Purchaser. Purchaser with Notice of Injunction against Sale.-A purchaser of such property at a sale made under a deed of trust, with knowledge of an order of injunction to the sale, acquires thereby only such right, as against the plaintiff in the suit, as the equity of the trust creditor may, on hearing the cause, be held to confer. Osborn v Glasscock, 39 W. Va. 749, 20 S. E. 702. Purchase during War with Notice of Illegality of Sale.-Where the grantor in a deed of trust was within the confederate lines, and the grantee was within the union lines, during the war, it was held, that, as it was illegal for the grantor to pay and the grantee to receive the debt, the deed could not be nforced at that time by a sale, and that one who was present at the sale. and who knew the circumstances, could stand in no better position than the purchaser, and that the grantor was entitled to have his land in paying to the vendee of the purchaser the amount of the debt which he owed to the cred Where property has been sold under a deed of trust, the deed of the trustee passes the legal title to the purchaser; but, in equity, a purchaser at a sale, made under a deed of trust, takes upon himself the risk of the regularity and fairness of the sale. Norman v. Hill, 2itor secured by the deed of trust. Pat. & H. 676. Sale Made by Personal Representative of Trustee. The personal representative of a trustee in a deed of trust on real estate to secure the payment Walker v. Beauchler, 27 Gratt. 511. What Constitutes Notice.-In Dugger v. Dugger, 84 Va. 130, 4 S. E. 171, the defendants claimed to be bona fide purchasers, but it was held, that the circumstances disclosed in the record! and recited in the opinion established notice. Witnesses to Prove Notice. In suit by children, claiming as heirs of their mother, equitable title to property, to annul trust deed and sale made thereof since mother's decease, it was held, that the father is a competent witness to prove that the grantees and purchasers had actual notice of the plaintiff's claims. Dugger v. Dugger, 84 Va. 130, 4 S. E. 171. during his lifetime, and his family since, having resided on the residue of the tract. In 1827, the trustee, S., sells under the trust and conveys the land to C., the purchaser. In 1848, the heirs of C. bring ejectment against H. for the land in his possession, and there is a special verdict which does not find an ouster or disclaimer by H. It was held, that the possession of A. after the deed, was as tenant by suffrance, and that the possession by H. after his entry, was of the same char (5) Effect of Prior Sale of Land for acter; and therefore the statute of limiTaxes. If a party holding a deed of trust upon a tract of land, to indemnify him as surety, pays the taxes on said tract of land, which is assessed to the grantor in said trust in the district where it is located, and said grantor conveys said land to another party, who has the land placed upon the land book in a different district from the one in which it is located, and suffers the same to be returned delinquent and sold for taxes, and the party entitled to the benefit of said trust purchases said land at a trust sale under said trust deed, his title so acquired will not be affected by said delinquent sale and a deed made in pursuance thereof. Carrell v. Mitchell, 37 W. Va. 130, 16 S. E. 453. (6) Action for Recovery of Property. Right to Maintain Unlawful Detainer. -The purchaser may recover the property by an action of unlawful entry and detainer. Wilson v. Wall, 99 Va. 353, 38 S. E. 181. Right to Maintain Ejectment.-See the title EJECTMENT, vol. 4, p. 888. Limitations to Ejectment.—In May, 1816, A. conveys to S. a tract of land in trust to secure a debt to C., which is duly recorded on the same day; and in October of the same year he executes to H. a title bond for a part of the land; and H. immediately enters into possession cultivating and farming, and claiming it under s: bond, and continues thus to hold possession; A. tations is no bar to the action. Creigh In General.-Where a deed of trust is made to secure the payment of a just debt, the property conveyed is first liable to pay the debt. Claytor v. Anthony, 6 Rand. 285; Iaege v. Bossieux. 15 Gratt. 83. Where a trustee in a deed of trust to secure a debt has sold the trust subject, and has faithfully executed the trust reposed in him and disbursed the funds that came into his hands in the payment of the debt secured and the expenses of sale, he can not be held responsible for the proceeds of such sale by a prior judgment creditor, whatever may be the rights of such creditor against the land itself. Nelson V. Turner, 97 Va. 54, 33 S. E. 390. Division or Apportionment of Proceeds between Debts Secured.-A deed of trust was made to secure certain creditors, for some of whose debts sureties were bound. The deed directed trustees so to dispose of the trust property that no surety in the said debts should suffer or be injured on account thereof. It was held, under these provisions of the . trust deed, that the debts for which sureties were bound were preferred debts, and to be first satisfied. Miller v. Holcombe, 9 Gratt. 665. In 1851, N. E. conveyed to his brother, J. E., a tract of land on which there were four deeds of trust to secure debts, which were recognized in the conveyance from N. E. to J. E.; and J. E. covenanted to pay off the debts of N. E., for which J. E. and two others were bound as his sureties, amounting to some $4,000. J. E. paid part of the first, second and third mortgage debts, and took no assignment from the creditors. When the conveyance was made in 1851, the property was worth more than the amount of the mortgage debts and the debts for which J. E. was bound as surety of N. E.; but during the war it was very much injured by the enemy, who destroyed the buildings and cut off the timber. In 1871, the trustee in the first two deeds sold the land to satisfy the balance due under these deeds, and there was a balance left. It was held, that under the circumstances J. E. is not entitled to have this balance applied to repay him what he had paid upon the debt secured by the first three deeds; for he was in fact paying his own debt; but it is to be applied to pay, first the balance due under the third deed, and then the debt secured by the fourth deed. Gayle v. Wilson, 30 Gratt. 166. Enforcement of Payment to Beneficiary.—Wher: a trustee sells the trust subject and receives the money for it, though he promises the beneficiary to pay the money, the court of equity nevertheless retains jurisdiction to enforce the payment. Nease v. Capehart, 8 W. Va. 95. (2) Power of Trustee to Retain His Own Debt Out of Proceeds. Where the deed of trust authorizes it, the trustee may first pay any debt that is owning to him from the debtor. French v. Townes, 10 Gratt. 513. (3) Disposition of Surplus. (a) In General. In a deed of trust, though the legal title is in the trustee, his estate never becomes absolute, and the right of the debtor, or his executor, to redeem or to receive the surplus after a sale is recognized by the character of the instrument, if not by its terms. Harvey v. Steptoe, 17 Gratt. 289, 308; Jones v. Lockland, 2 Gratt. 81. (b) Subjection by Grantor's Creditors. If any surplus remains after paying the debt secured and executing the trust, that surplus is a fund to which the creditors of the grantor have a right to resort, but it can not be reached by execution before a sale under the deed, because it is an equitable and contingent interest. Claytor v. Anthony, 6 Rand. 285. Judgment creditors seek to subject land of their debtor which has been conveyed in trust to secure a debt; and in their bill they charge that the deed was intended by the grantor to defraud his creditors, and the trustee and creditor in the deed were cognizant of the fraudulent intent at the time. The creditor answers and denies the fraud and proves his debt. It was held, that it was proper to proceed in the cause and decree satisfaction of the plaintiff's debts out of the surplus of the purchase money of the land after the satisfaction of the debt secured by the deed. It is a proper case for a decree between defendants, and, the debt of the trust creditor having been established, for a decree in his favor for Barger v. Buckland, 28 the debt. Gratt. 850. Subjection of Surplus by Decedent's Creditors. As to whether surplus is legal or equitable assets, see the title EXECUTORS AND ADMINISTRATORS, vol 5, p. 580. (c) Dower in Surplus. See the title DOWER, vol. 4, p. 799. (d) Priorities. In August, 1867, M. sold to C. a tract of land for $5,500, on credits extending to 1870, for which M. had not obtained the title, and $2,100 was to be retained until the death of F. upon the payment of the interest. C. paid in cash |