Oswald

This is an appeal from an order denying two claims, one of Richard Castle, and the other, George H. Oswald. By agreement the record has been consolidated, and both appeals were heard together.

The bankrupt copartnership consisted of F. A. Arbuekle, John M. Pratt, R. W. Purpus, I. W. Norcross, James Westervelt, and Charles Stone. The partnership was formed for the purpose of acquiring a tract of about 100 acres of land, subdividing the property into residence lots, improving the streets and selling the lots. Mrs. Stone, with her husband, Charles Stone, conveyed the property to Charles Stone, trustee, by a deed of trust, by the terms of which he was given the sole and exclusive management of the real property conveyed with power to sell the same. The property was subject to two trust deeds given to secure claims, one for $350,000 and one for $250,000. The copartners all joined in a general power of attorney to Charles Stone. In order to improve the proposed streets in the tract, the copartnership desired to secure some one who would make an investment of between $500,000 and $600,000 for that purpose, and accept in payment therefor a part of the property subdivided, and employed…

(dissenting). 1. By deed reserving nothing but a contingent interest in the net profits, if any, of the enterprise, the bankrupts conveyed the property, to which alone Castle’s contract related, to a. trustee with unrestricted power touching its use and disposition. Castle’s contract was made with this grantee as trustee and not otherwise, and under it he has recourse against such trustee and the trust property, but not against the bankrupts here or against the bankrupt estate, which is entirely distinct *822 from the trust estate. Under such, conditions a trustee is not the agent of the beneficiaries.

2. But, if a contrary view were admissible, by paying the very obligation he had assumed and agreed to discharge, Castle could have withdrawn his property from the lien of the mortgage which was foreclosed, and thus have avoided the loss. The reasons he assigns for not so doing seem to me to be frivolous. I therefore think the judgment should be affirmed.