Page:Federal Reporter, 1st Series, Volume 10.djvu/876

 864 FEDERAL REPORTEa. �as this release and the mortgage to Wight were recorded at the same moment, it is evident that Wight did, as he testiuea he did, rely upon this release in making the loan. �4. The next question is as to the validity of the deed executed by Samuel W. Worthington, trustee, to Thomas L. Worthington, (Exhibit Q,) purporting to convey the one-fifth interest in the lands which had descended to Martha E. Worthington under the terms of the will by the death of her brother George. Proceedings were instituted in equity in the circuit court for Baltimore county, and a decree was obtained ratifying the sale of the said one-fifth interest to Thomas L. Worthington for $2,000. This decree was dated the sixteenth of July, 1867, and authorized Samuel W. Worthington, as trustee, on the payment of $2,000, to execute a deed to the purchaser for the interest in the land sold to him. On the same day, however, there was filed in said cause the petition of the trustee asking the court to direct him to invest the $2,000 of purchase money in a mortgage to be executed by the purchaser upon the property so sold, and on the same day the court did pass an order directing the trustee to invest the $2,000 of purchase money in a mortgage from the purchaser of the property sold to him, "to be executed simultaneously with the deed," The deed was dated the sixteenth of July, 1867, acknowl- edged the twenty-seventh of AprU, 1869, and recorded the fifth of March, 1870. No mortgage was ever executed as directed by the order of the court, and, although the deed recites that the trustee had received the purchase money, it now appears that it never bas been paid. �The order of the court of the sixteenth of July, 1867, is a peremp- tory direction to the trustee to invest the money in a mortgage of the property sold, and take the mortgage simultaneously with the execu- tion of the deed; and it would seem that the trustee, having no dis- cretion left to him, could not, without further order of the court, dis- regard its direction and accept the purchase money in cash. �The order of the sixteenth of July had changed the terms of the decree, and had changed the duties and powers of the trustee ; and if thereafter the purchaser should offer to pay the money and refuse to give a mortgage, it might be quite to the disadvantage of the cestui qui trust, and the trustee would have no right to accept the money without first obtaining the direction of the court. But whether the trustee could or could not, upon actually receiving the purchase money instead of the mortgage, have given an effectuai deed without further order of ��� �