The record-union., 1898-06-13

vancements and expenses incurred by
Peter j. Huelsman in the management
and conduct of said property. ana
that to meet all these expenses ana
disbursements said parties had bor-
rowed the sum of two thousand (S2.OOO
dollars from Marcus Graf, who is one
of the defendants in this action, and
that the rents and profits derived from
said real property should be appneu
to the payment of the indebtedness 10
Graf until the same was liquldated IN
consideration of the advancements
I made by said Peter j. Huelsman the
said Eda M. Krigbaum appointed him
her true and lawful attorney, irrevoca-
BILE, for the purposes of managing said
property, collecting the rents, issues
and profits thereof and applying them
to the payment of the indebtedness due
to said Graf. and also agreed not to
sell or in any manner cucumber said
| real and personal property, or her in
terest therein. Nowhere in this agree
ment is any mention made of the deed
of trust previously executed by one of
the parties to the other, and the prop
erty is treated in said agreement pre-
cisely as if no such deed had ever been
made, and as if each party was the
owner of his or her respective interest
as derived from the will of their father.
1t seems to the court that all Of the
questions involved in this litigation are
dependent upon the solution of two
main points of controversy, namely:
First-At the time Of the execution
and delivery of the mortgage to the
plaintiff, did the defendant Eda NJ
Krigbaum have such an interest in the
mortgaged premises as is, under the
law, susceptible of being mortgaged? :?
and,
Second-If the defendant Eda NJ
Krigbaum, at the date of her mort
gage to the plaintiff had a MORTGAGE
able interest in the land and premises
in controversy, has she, since that
time, and by reason of the agreement
entered into between herself and said
Peter j. Huelsman, acquired any diff
ferent or greater interest in said mort
gagged premises than she had at the
date of said mortgage?
These questions will be considered in
the order indicated above
FIRST
Did Eda NJ. Krigbaum have any
mortgageable interest in said land on
January 4, 1897, when she executed
the mortgage to the plaintiff?
The decision Of this question depends
very largely, if not entirely. upon the
construction and effect to be given to
the deed Of trust executed by Eda M.
hrlgbaum to her brother, Peter J..
Huelsman, on the 14th day of March,
1880. An examination of that instru-
ment discloses that in the granting
clause thereof she endeavors to
convey and does convey the
Iand and premises described there
III, pelng the same land described in
her mortgage to the plaintiff. to her
prother during the term of his natu-
raj lie, subject to the trust that he
VIII manage and conduct said property
IN the best manner possible and pay
over to herself all of the rents. issues
and profits thereof.
If this was the only cause in that in
strument from which was to be gath
cred the intent of the parties as tn
the estate granted, there would be 10
dlfflculty in its Interpretation: it would
be entirely clear that the only object Of
the execution of this deed of trust vas
to vest the legal title Of the premises
described in the deed, in Peter J. Huels-
trust that he would pay the income re-
ceived therefrom to Eda M. Krigbaun
and that the entire estate granted
should revert to the grantor on the
death of the grantee The habendum
| clause in said deed of trust. which is
intended to limit and explain the in
terest or estate conveyed by the deed
is more difficult of Interpretation and
understanding. The first sentence
thereof reads as follows: "At the death
OF my said trustee, said trust is hereby
| declared to be at an end, and said
trust property shall thereupon revert
and be the property Of myself, and in
the event of my death before that date
| 10 go TO my heirs, legatees and devi-
| Sees"
| The intent Of the grantor to make the
| existence of the trust co-extensiye with
the life of the trustee, and to terminate
| the trust on his death, is patent. It is
| equally plain that the estate which
vested in the trustee under the deed
/ shall, on the termination of the trust
revert to the grantor if she is living at
| that time. But what was the object
/ and intent of the grantor in the .nser-
ton Of the following words in said SEN
tence, viz: And in the event of my
death before that date, to go to my
| heirs, legateeS and devisees 2" That il
was the intention of the grantor, if she
died before her trustee, to continue the
| existence Of the trust and vest the
| title she had conveyed to her trustee. in
| her heirs, legatees and devisees, still
encountered with the trust, appears not
only from the explicit statement in the
sentence under consideration, that the
trust shall not be at an end until the
death of the trustee, but also appears
| from the second sentence in the hab an
dunn clause, which is as follows, to wit:
In the event of my death before the
death Of my said trustee, the rents, is
sues, profits and income of said trust
| property to be disposed of as l may di-
rect by WILL or, in the absence of any
| will, to my heirs at law" Such rlusi
have been the intention Of the grantor
else she would not have provided fcl
the disposition of the income of the
| trust property after her death.
Section S63 of the Civil Code (Which
will quote hereafter) provides that a
beneficiary Of trust in real property
shall take no interest in the realty, and
limits his remedy to an enforcement
of the trust. Section S64 of the same
code reads as follows: "Notwithstand
ing anything contained in the last sec.
ton, the author Of trust may, n ITS
| creation, prescribe to whom the rea
property to which the trust relates shall
belong, in the event of the failure Oh
| termination of the trust, and may