The land situate in the city of Raleigh, on which Rex Hospital is located, was conveyed to the defendant, trustees of Rex Hospital, a corporation created by the General Assembly of this State, by a deed dated.day of August, 1893. This deed was executed by St. *493John’s Guild, a corporation organized under the laws of this State, and is duly recorded in the office of the register of deeds of Wake County, in Book 124, at page 179. By virtue of this deed, the corporate defendant, trustees of Rex Plospital, is now the owner in fee simple of said land. There is nothing in the deed, which appears in the record, which limits or restricts the title or estate of the defendant, in or to said land, or its right to convey the same by deed or mortgage. It appears, however, from the record, that the purchase price for said land was paid by the defendant out of the proceeds of the sale of a parcel of land, containing twenty-one acres, which was conveyed to the defendant by the executors of John Rex, pursuant to the provisions of his last will and testament. John Rex, a citizen of this State, and a resident of the city of Raleigh, died in 1839. His last will and testament was duly probated and recorded in the office of the clerk of the Superior Court of Wake County, and contains the following:
“It being my desire to provide a comfortable retreat for the sick and afflicted poor belonging to the city of Raleigh, in which they may have the benefit of skillful medical aid and proper attention, it is my will that a lot or parcel of land containing twenty-one acres adjoining the city of Raleigh on the southwest side, being the same purchased by me of the commissioners appointed for selling a part of the public lands, and which is comprised in the general devise of all my lands to the aforesaid Duncan Cameron and Geo. W. Mordeeai in trust as before mentioned, be appropriated for the erection thereon of an infirmary or hospital for the sick and afflicted poor of the city of Raleigh and for no other use or purpose whatsoever.
“And for the endowment of said hospital as far as I have the ability to do so, it is my will that all the money belonging to me, all the debts due me, and all the rest and residue of my estate hereinbefore given, devised and bequeathed by me to the said Duncan Cameron and Geo. W. Mordeeai in trust and not otherwise specially appropriated be, and they are hereby appropriated to the endowment of said hospital, and whenever the constituted authorities of the city of Raleigh shall legally appoint trustees capable in law of holding the same, then the said Duncan Cameron and Geo. W. Mordeeai or the survivor of them, or the executor or executors of the survivor of them, shall convey the said lot or parcel of land and the fund accruing from the money belonging to me, the debts due and the rest and residue of my estate as above described to the said trustees, or their successors duly appointed in trust forever, for the execution and endowment of such hospital, and no other use or purpose.”
After the probate of said last will and testament, the General Assembly of this State, by chapter 6, Private Laws of 1840-41, authorized *494the commissioners of the city of Raleigh, to nominate, and with the approval of the Supreme Court of the State, to appoint five persons as trustees of Rex Hospital. The said persons and their successors were declared to be a body corporate by the name of the “trustees of Rex Hospital.” The said corporation was authorized to receive and hold the property and effects devised, and bequeathed by John Rex by his last will and testament, and to use and apply the same to and for the purposes specified in said will, and no other, and also to receive and hold donations of lands and personal property for the purposes aforesaid.
Section 3, chapter 6, Private Laws of North Carolina, 1840-41, is as follows:
“And be it further enacted: That the commissioners of the city of Raleigh, for the time being may, at any and all times, by petition in equity in the Supreme Court, call on the said trustees for an exhibition of their accounts and doings in discharge of this trust, and such proceedings shall be summary, and the Court may make any order or orders thereupon from time to time as may be necessary to enforce a strict compliance with the design of the testator, to correct and prevent abuses, to remove or displace any trustee or trustees, who shall appear to have been guilty of any wilful default or gross neglect in the discharge of his duty, or to have become incompetent by bodily or mental infirmity; and generally to do and order what shall seem to the said Court best in the premises.”
The question presented by this appeal is not whether trustees, individual or corporate, who own property, real or personal, in fee simple or absolutely, but which is subject to a charitable trust imposed thereon by the testator, grantor, or other donor in the will, deed, or other instrument by which the trust was created, in the absence of express authority contained in said -will, deed or other instrument, have the power, with or without the approval of a court of competent jurisdiction, to convey said property by mortgage or deed of trust to secure money borrowed by said trustees, in good faith, to enable them to improve or add to said property, and thereby to preserve or enlarge their facilities for carrying out the charitable purpose of their testator, grantor, or donor. For obvious reasons, this question cannot be decided, and ought not to be discussed by this Court unless and until it has been properly and clearly presented for decision. See Wright v. McGee, ante, 52, 173 S. E., 31.
It was held by this Court in Shannonhouse v. Wolfe, 191 N. C., 769, 133 S. E., 93, that in the absence of authority from the grantor in the deed by which a charitable trust was created, and of the approval of a court with equitable jurisdiction, the trustees had no such power. In *495tbat ease, tbe trustees of a charitable trust bad executed a mortgage on the land held by them to secure money borrowed by the trustees, and expended by them in the improvement of the property. It was held that the mortgage was void, because the trustees had no power to convey the land by mortgage. That case was distinguished from Hall v. Quinn, 190 N. C., 326, 130 S. E., 18, in which it was held that a mortgage executed by a corporate trustee to secure notes for borrowed money was valid. In the latter case, the corporate trustee was authorized by the statute by which it was created, to use and enjoy, alien, exchange, invest, convert and reinvest all its property and assets in like manner with other corporations similarly chartered. The statute was construed by this Court as authorizing the corporate trustee to mortgage as well as to sell and convey its property. In that case, the mortgage had not been approved by a court of competent jurisdiction.
In Ellerherst v. Pythian (Ky.), 63 S. W., 37, the question presented to the Court of Appeals of Kentucky was whether the trustees of a charitable trust created by a will, with the approval of a court of competent jurisdiction, on the facts involved in that case, had the power to mortgage the property devised and bequeathed to the trustees for the establishment and maintenance of a hospital. The judgment of the Circuit Court, which had original equitable jurisdiction, approving the mortgage, was affirmed. In that case, it was provided in the will of the testator that the trustees should report, annually, all their acts and doings to the highest court in the county in which the hospital was located, having equitable jurisdiction. In that case it is said: “It would be unfortunate if there was no power anywhere to enable the trustees to relieve the institution of its present embarrassment, and place it in a position where it can take care of the sick, and thus accomplish the beneficial purpose of the testatrix.”
In the instant case, it is expressly provided by the statute by which the corporate defendant, trustees of Rex Hospital, was created, that said corporation should hold the property, real and personal, which should be conveyed to it by the executors of John Rex, pursuant to the provisions of his will, or which should be donated to it from time to time, subject to such orders as a court of equity should make. For this reason, the judgment of the Superior Court, which had original jurisdiction of this action, on the facts found by said court, approving the mortgage or deed of trust, which the corporate defendant, trustee of Rex Hospital, has agreed to execute to secure the loan to be made to it by the Public Works Administration, is
Affirmed.