#### H. M. KADIS v. LIONEL WEIL.

(Filed 10 December, 1913.)

Trusts — Power of Sale — Cestui Que Trust — Written Request — Deeds and Conveyances — Purchaser—Application of Funds.

• A deed in, trust to lands to be held to the sole and separate use of another, with certain expressed limitations over, containing a power of sale in the trustee upon the written request of the cestui que trust, the proceeds to be invested and held by the trustee to the same uses and purposes, confers upon the trustee with such written consent, full power to convey to a 'bona, fide purchaser, and the latter is not held to see to the proper application of the funds derived from the sale; and it is further held that the cestm que trust joining in the trustee’s deed is a sufficient authorization.

*85Appeal by defendant from Daniels, J., at November Term, 1913, of WayNE.

Controversy without action. The plaintiff by mesne conveyances claims to be the owner in fee of certain property therein described in the following deed:

“This deed, made by "William T. Gfriffin, of the county of Nash and State aforesaid, to A. B. Chestnutt, of'the county of Sampson, State aforesaid, witnesseth:

“That the said William T. Griffin has, for and in consideration of the sum of $354 to' him paid, bargained and sold to A. B. Chestnutt and his heirs a certain town lot in the town of Golds-boro, North Carolina,, and known in the plan of said town as Lot No., being a lot deeded by H. W. Burwell and wife to the said Griffin, and originally purchased by said Burwell of John T. Kennedy by deed dated 1- December, 1855.

“Beginning on North Boundary Street at Mrs. Brocket!’s corner, now Mrs. Davis’, thence along her line north 18 east 297 feet to the ditch, the J^angston line; thence up the ditch westerly to a stake, a comer of the lot known as the James LI.Griffin lot; thence along said lot 348 feet to the street; thence along the street to the beginning, being one-half.of the whole front mentioned in deed of said Kennedy, dated 1 December, 1855, containing 1 acre and 14% poles.

“To have and to hold the within conveyed town lot upon the following conditions, and for the following uses and purposes, for the sole and separate use and benefit of Martha J. Hollowell, wife of James Hollowell, exclusive of the contract of 'her husband, or of any contract or liability that he may at this time be bound, or for any future contract or liability, but to be held for her sole and separate use and benefit during her life, and, at her death, to such children as she may leave surviving her, begotten of her present marriage, and to the issue of such as may be dead, such issue to take such share as the parent would have taken if living; and in case the said Martha J. Hollowell should die leaving no child or children surviving her, then in that case the property in this deed conveyed shall be held and owned by her husband, J ames M. Hollowell.

*86“And it is further provided that- should the said Martha J. Hollowell die leaving children or a child surviving her, begotten by her present husband,, that then in that case James M. Hollo-well -shall be allowed to live in the house and use the lot during his life, without paying any rent for the same; and it is further provided that the said A. B. Ohestnutt or any future trustee shall, when requested in writing by the said Martha J. Hollo-well, sell the within conveyed town lot and make a deed for'the same and reinvest the proceeds of said sale as the said Martha. J. Hollowell may in writing direct, which is to be held on the same terms and conditions,, and for the same use and purposes., as this town lot is held, and for no other.

“And it is further provided that should the said Ohestnutt die, refuse to accept this trust, or become incompetent to act, that then in that cáse the said Martha J. Hollowell shall have power to appoint a trustee to hold the property in this deed conveyed ; and it is further provided that the said Ohestnutt or any future trustee shall not be held responsible for any rents or profits'of said town lot while the said Martha J. Hollowell or her husband, James M. Hollowell, remain in possession of said town lot.

“And the said William T. Griffin, for himself, his heirs and executors, etc., do covenant and agree with the said Ohestnutt, trustee, etc., to warrant, make, give and defend the, title and right to said lot against the lawful claim or claims of any and all persons.

“In -testimony whereof, the said William T. Griffin has hereunto set his hand and seal,, this 8 December, 1876.

- “Signed, sealed, and delivered in the presence of B. W. Heffum. • William T. Griffin. [seal]”

The court rendered judgment in favor of the plaintiff, and the defendant appealed.

E. A. Humphrey for plaintiff.

D. G. Humphrey for defendant.

BROWN, J.

-The plaintiff contends that he and his wife have a right to convey in fee simple, free from encumbrances, to the *87defendant, tbe land conveyed to tbe plaintiff'by tbe said Martha J. Hollowell and George E. Hood, trustee, and described in, tbe deed tendered to tbe defendant by tbe plaintiff.

We are of opinion tbat under tbe terms of tbe deed in trust above set out, tbe contention of tbe plaintiff is well founded. It is admitted tbat George E. Hood bas been duly and legally substituted as trustee in place of A? B. Obestnutt, deceased, ,in said deed in trust.

• By force of law, as well as by tbe express words of tbe deed, Hood is vested with all tbe powers conferred upon bis predecessor. Tbe language of tbe instrument is clear, and confers upon tbe trastee tbe powér to sell tbe property, or any part of it,, and execute a title in fee to tbe purchaser when- requested in writing by tbe said Martha J. Hollowell, tbe cestui que trust. This consent is manifested when she joined in tbe deed with tbe trustee.

, Tbe contention of tbe defendant tbat it was tbe duty of tbe plaintiff to see to tbe application of tbe proceeds derived from, tbe sale to him, and see tbat tbe same was reinvested in real estate by tbe trustee, cannot be sustained.

It was so held in England, but is not tbe law here - as to a tona -fide purchaser for value.

Hauser v. Shore, 40 N. C., 357; Whitted v. Nash, 66 N. C., 590; Grimes v. Taft, 98 N. C., 198; Hunt v. Bank, 17 N. C., 60; 39 Cyc., pp. 378 and 379; A. and E. (2d Ed.), vol. 28, pp. 1130 and 1131.

Affirmed