7 Miss. 143 | Miss. | 1842
stated the case, and delivered the opinion of the court.
I shall not stop to inquire into the correctness of the decision on the pleadings, because those questions are wholly immaterial. Both the plea of nul tiel corporation and of tender, were bad, because the plaintiffs do not profess to sue as a corporation, and a tender of state warrants was no tender at all.
Much of the argument on both sides has been directed to the question of whether the plaintiffs were or were not a corporate body, but this is also foreign to the purpose, since the plaintiffs have not sued as a corporation, either quasi or proper; nor was it necessary that they should so have sued. Their character is that of trustees, and in that capacity I shall endeavor to show that they may maintain the action.
The proof of this proposition involves four questions:—
1. Has the state the power by legislative enactment to appoint trustees?
2. Were the plaintiffs competent to act in that capacity?
3. Was a trust created by the act originating the sinking fund?
’ 4. Gan the trustees sue at law on a contract made by them in the discharge of their legitimate functions?
First. That the state by legislative enactment may, either directly or through agents properly appointed, convey in trust and appoint trustees, is a proposition which at this day surely requires neither argument nor authority to support it. It may hold property real and personal, and convey or dispose of it either absolutely or conditionally; or it may direct its application either directly or through agents to any particular object, public or private, either in presentí or in futuro. Instances are frequent, both in England and America, in which trusts are created by legislative enactment, both for public and private purposes; hence law writers divide trusts into public and private. Trusts so declared may in all respects correspond to those between individuals, and of course the same remedies will apply.
Third: Was - a trust created by the act which orignated the sinking fund? A trust is said to be “an obligation upon a person arising out. of a confidence reposed in him, to apply property faithfully and according to such confidence.” Willis on Trustees, 2. To constitute a direct trust, there must be a'conveyance or transfer to a person capable of holding it: there must also be an object or fund transferred, and a cestui que trust or purpose to which the trust fund is to be applied. No particular words, are necessary to constitute a trust; but if it be the plain intention of the parties to create a trust, it will be regarded as such. By the 10th sec. of the act chartering the Planters’ bank, provision was made for the creation and management of the sinking fund. The state was
It is evident, when we look at the object which the legislature had in view, that the design was to make this fund profitable; hence it was placed under the “management” of the plaintiffs. The power to manage implies the power to control. It allows the exercise of a discretion. It could not be managed without the power to do so, and by requiring the one, the other was conferred. To manage money is to employ or invest it. It requires no other-management. The word manage, when applied to money placed in the hands of another, is a word of trust and confidence. The plaintiffs had the legal custody of this fund,'and they were required to manage it for the purpose of subserving a particular end; but it was not to be diverted from that end; and under this limitation, it could be managed in no other way than by loaning. The bonds would not become due for many years, and it was policy to make this fund profitable in the mean time. We can not doubt, from
Fourth: Can the trustees sue at law on a contract made by them in the discharge of their legitimate powers? It is admitted that the plaintiffs are not without a remedy, but it is also said that they have not adopted the appropriate one. Now supposing them to be trustees, and that the defendants have come legally into possession of a part of the trust fund with a knowledge- of the trust, this in many cases would make the defendants trustees also; but this rule cannot apply when such possession is acquired in the course of a due and proper execution-of the trust; for instance, if a trustee be authorized to sell, the purchaser holds free from the trust. The remedy then must be at law. In the case of Newman v. Montgomery, 5 Howard, 742, it was decided by this court, that a trustee could maintain an action of detenue for a slave held in trust, even against his cestui que trust. The trustee is regarded as the legal owner, and having the possession of real estate, or the
The plaintiffs have properly declared as commissioners of the sinking fund, for the plain reason that the trust was not conferred on them by name; it was vested in the individuals who should fill certain offices; it was therefore necessary that they should aver themselves to be the incumbents of these offices, in order to entitle them to the action. This they have done, and it is admitted by the pleading.
The judgment must be reversed, and a venire de novo awarded-