If the grantor convey land by description ample and sufficient to designate the property intended to be conveyed, and then add impossible or repugnant calls, the latter will be rejected as falsa demonstratio, and the first description will stand. For the law on this subject, see Washburn on Real Property, (Vol. III., top page 344, star paging margin 629, bottom page 670,) and the authorities cited; 7 Johnson, page 223-4. The proposition that the surviving grantees of Bezer Simmons could not themselves convey or be compelled to convey the property deeded to them, it seems to us, arises simply from not noticing the difference between powers and trusts, and also from not noticing the distinction between naked powers and powers coupled with an interest.
The law in regard to mere naked powers, not coupled either with a trust or an interest, is undoubtedly as laid down by appellant. If one attorney out of three who have been authorized, in their discretion, to do or not to do a certain thing, dies, certainly the survivors cannotact. But there is a distinction between a power and a trust. Lord C. J. Wilmot draws the following distinction: " Powers are never imperative; they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party entrusted." (See Hill on Trustees, marginal page 67.)
Now, in the case at bar, the fee simple title is conveyed to the grantees and their heirs. If, when one dies, the two survivors cannot sell, then certainly the last survivor cannot. If the last survivor cannot sell, then assuredly his heirs could not sell, and so the estate would become a perpetuity; and the estate which was deeded in trust for the benefit of creditors would become an inalienable estate in the heir of the last survivor. This could hardly be the law in any country where reason, justice and common sense was the guide for Courts in the rendition of their decisions. But the authorities are conclusive on this point.
" When a power of sale is given to several executors, virtute officii, or is given to them by name, but is coupled with an interest or trust, the power may be exercised by the survivor." (Hill onTrustees, note 1, top page 735, marginal page 472; 2 Johnson Chancery Reports, pages 19 to 21; 10 Peters, pages 564-5; 4 Denio, 399.)
When a power conferred on several persons is coupled with an interest, if the interest or estate survives, the power must of necessity survive. (Perry on Trusts, Sec. 505.)
JUDGES: McKinstry, J. Mr. Justice Rhodes did not express an opinion.
OPINION
McKINSTRY, Judge
The date, names of the parties and description of property sufficiently identify the deed of November 24, 1849, as the instrument referred to in the assignment from Simmons to Billings, Bolton and Halleck. The fact that the deed had not been recorded in Sacramento did not vitiate the description, otherwise sufficient, contained in the assignment.
If the surviving trustees, Billings and Bolton, had authority to execute a conveyance of the legal title to the plaintiff, the District Court was empowered to decree such conveyance; and the objection that the Court had no jurisdiction to enter the decree of the 13th of March, 1870, (on the ground that the authority of the trustees was to be exercised at their discretion) was properly overruled. It does not appear from the record but that the land had been sold by the three trustees to the plaintiff, and the consideration received by them, in which event it was their absolute duty to transfer the legal title.
The only remaining question is: Did the District Court have jurisdiction to decree a conveyance of the legal title by the surviving trustees after the death of Halleck?
The trustees held the title as joint-tenants. Whenever, by the terms of gift, it is doubtful whether trustees take as joint-tenants, or tenants in common, Courts will construe a joint-tenancy if possible. (Perry on Trusts, Sec. 343, and cases cited.) And the Statute of April 27, 1855, provided: " Every interest in real estate granted or devised to two or more persons, other than executors and trustees as such, shall be a tenancy in common, unless expressly declared in the grant or devise to be a joint-tenancy." (Acts 1855, 1871.) On the death of Halleck, therefore, the whole estate devolved upon the survivors.
The survivorship of the estate carries with it survivorship of such powers as are annexed to the trust. " If an estate is vested in three trustees upon a trust to sell, there, as the power is coupled with an interest, and the interest survives, the power also survives. And this is as old as Lord Coke, who says, 'If a man deviseth land to his executors to be sold, and maketh two executors, and one dieth, yet the survivor may sell, because as the estate, so the trust shall survive; and so note the diversity between a bare trust and a trust coupled with an interest.'" (Perry, Sec. 505.)
Judgment and order affirmed.