(81 South. 826)

#### HARRIS v. KYLE.

(7 Div. 987.)

Supreme Court of Alabama.

April 10, 1919.

Estoppel <&wkey;31 — Mortgage by Devisee Holding in Trust — Knowledge oe Mortgagee.

Devisee of land in trust for life of another who mortgages the land to executrix of testatrix is not estopped to deny trust or his own title as remainderman in action by mortgagee to foreclose; both parties being trustees not permitted to impair the trust.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill by R. B. Kyle against R. A. Harris. Decree for complainant, and respondent appeals.

Reversed and rendered.

Hood & Murphree, of Gadsden, for appellant.

Culli & Martin, of Gadsden, for appellee.

MAYFIELD, J.

The bill in this case is on its face a very simple affair, one to foreclose a mortgage. Only the parties to the mortgage are made parties to the bill. The answer, cross-bill, exhibits thereto, and the proof which is in effect an agreed statement of facts, on which the hearing was had and decree based, make a very complicated affair. In fact, the case thus made is an anomalous one, as for which we can find no exact precedents to guide or aid us in this decision.

It is made to appear beyond dispute that the property mortgaged belonged to the wife of appellant, who was the daughter of appellee, and that she devised it to her husband, but in trust and on condition that it should not be sold, exchanged, or in any manner disposed of until her infant daughter attained her majority or married, neither of which has yet happened. The estate of the husband was also conditioned upon his surviving his daughter’s attaining majority or marriage. If he died before the happening of either event, the will provided that the half interest in the net income of the property which the husband was to receive was in that event to go to a third party, Miss Hanna Crook, for her private use and that of the daughter. A part of the trust was that the lands should be kept together; put in the hands of a real estate agent, who should.rent it and care for it, paying one half of the net proceeds or rents to the husband and the other half to Miss Hanna Crook for the support and education of the daughter of testatrix. Miss Hanna Crook is clearly madei the testamentary guardian of the daughter, both as to her person and estate. Whether or not this provision of the will — as to the guardianship of the person of the daughter — has been carried out, and, if not, why not, is not made to appear, as neither the testamentary guardian nor the ward are made parties to the suit.

It is made to appear, however, that as to the estate the provision of the will has not been carried out, but that the income which the will provided should be paid to Miss Crook, the testamentary guardian, has been paid to another who appears to have been appointed guardian of the estate of the ward. Whether or not this was properly or legally done we will not now attempt to decide, because the parties interested were not before the trial court, and are not before us. We merely call attention to the fact to show the anomaly of the case.

The appellee, the complainant below, and the mortgagee of the mortgage sought to be foreclosed, is made executor of the will in question, and qualified as such, and acted as such executor for several years, making final settlement as such in the probate court; and it seems that the rents have been paid over to him since the date of his final settlement.

While the mortgage here in question is on its face on an undivided half interest in the property described, and it appears that the mortgagor has an interest in the land, which may result in an undivided half interest therein, yet it also appears that this interest may be cut down to a half interest only in the net profits during his life. In other words, as we have shown, the husband’s interest and title is not an absolute or unconditional title, except as to the half interest in the net profits during his life or the minority or single state of his daughter. We are unwilling to apply the rule of estoppel in this case that a mortgagor is es-topped to deny his own title, or set up the defense contrary to the recitals of his mortgage, that the property is held by him as trust property, which he had no right to mortgage, as held in Jones on Mortgages, §§ 682 and 1482, and in our own case of Strong v. -Waddell, 56 Ala. 471.

Here the mortgage recites that the interest of the mortgagor was that acquired by him as a joint owner or tenant in common with his daughter, and which interest he acquired by the will of his deceased wife; hence the warranty must be construed in connection with these recitals. It is therefore certain that neither party intended that the mortgagee should acquire any interest or title other than the mortgagor acquired by virtue of the will. Both parties were trustees, or acting in a fiduciary relation as to the will and the property, one as executor, the other as a trustee, when the mortgage was executed; and a court of equity will not allow them to defeat or impair the trust by any contract between themselves. It was the legal and equitable duty *37of both to see that the provisions of the will were carried out so far as it was lawful ; and, as both parties are claiming under the will and trust, and not against it, they can neither be heard to dispute its provisions. They must take by virtue of its provisions, and not against it; and, both occupying fiduciary relations, they will be held to a strict performance of the conditions of the trust.

This will unmistakably provides that the property shall be kept together and rented out until the daughter is married or arrives at her majority, and that it shall not be sold, exchanged, or in any manner disposed of until the happening of one or the other of these two events, neither of which has yet happened. To sell the whole or any part of it, or any interest in the corpus of the land, would be a clear violation of the trust by the parties who were by the will charged with the duty of seeing to its enforcement. The court will not aid them in doing what they could not do without its aid; if in so doing they are both breaching the trust under which they claim the property and are charged with the duty of enforcing. To decree a sale of this land, and to sell the same under the decree, as is sought in this bill and as decreed by the court below, would undoubtedly breach the trust created by the will, and do so at the suit of the parties who are entrusted with the power, and upon whom, is enjoined the duty of carrying out the trust.

It would also be a breach of the trust to thus sell an undivided half interest in the property; but no such limitation or qualification is by the bill sought to be sold, or is the decree so limited to such interest. The bill seeks to have the whole interest sold, and the decree, so far as it authorizes a sale, authorizes a sale of the entire fee.

The case, as before stated, is an anomalous one, and we find no precedents by which it can be ruled.

While a foreclosure sale would probably not destroy the interest or estate of the child of the testatrix, or the testamentary guardian, because they are not parties to the suit, yet it would in part, if not in toto, destroy the trust, and defeat the will of the testatrix, and do so by contract and suits between two of the parties charged with the duty of executing and enforcing the trust.

It is unnecessary to decide as to what rights the mortgage passed to the mortgag- or’s interest in the net rents, income, and profits, for the réason the parties seemed to have treated these as not a part of the mortgage security, but by contract to have applied it to other debts. As to the husband’s part of the net proceeds of the rents, of course, he could contract at will without violating or defeating the trust. So could he dispose of whatever interest he might have in the corpus of the estate, after a full execution of the trust, and the division thereof as is provided for in the will; but he cannot dispose of it in violation of the will and trust, because he received it only on the conditions of the will. It is very true, if he had attempted to dispose of it to strangers to the trust, different principles of law, estoppel, etc., might be invoked, but those principles do not apply here, where he attempted to dispose of it to another trustee under the same will, who was likewise under the duty of seeing that the trust was carried out and enforced. The law will not allow either party to thus profit by his own wrong.

It is proper to say that we do not now attempt to construe the will or the mortgage, except in so far as it is necessary to say that, in construing both together, no relief sought in this bill can be had, because to do so would allow two trustees under the will to defeat the very trust which they were in duty and law bound to enforce.

Neither the will nor the mortgage is a model of perspicuity, and, so far as the .will is concerned, only one of the parties interested therein is before the court, and a further construction of it would now be improper.

The main equity of the bill having been to foreclose the mortgage, and having failed as to this, it is unnecessary to pass on the other questions argued, some of which involve and might prejudice the rights of other parties named in the will, who are not before the court.

It results that the decree appealed from .is erroneous, and that the bill should be dismissed, but without prejudice as to any rights that either party may have as to actions at law or for an accounting in equity as to the amount of indebtedness between them.

Reversed and rendered.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.