42 Colo. 393 | Colo. | 1908
delivered the opinion of the court:
The foregoing excerpts from the. complaint and accompanying bill of particulars are sufficient to enable us to determine whether the complaint is obnoxious to the objection urged against it. That the moneys alleged to have been appropriated by defendants constituted a trust fund which could not rightfully be diverted from the purpose for which it was created, seems to us beyond dispute. It was contributed for the purposes specified in both charters of the grand and subordinate lodges and, as therein provided, was to be devoted exclusively “to the objects of the order,” subject to the contingency that the subordinate lodge should disband itself, in which event the defendants expressly obligated themselves to deliver all the property of the lodge, whether it consisted of money or utensils, to the grand lodge. This fund, therefore, being held by the subordinate lodge and its officers, to whom it was committed, or to whose control it was subjected, upon these conditions, the defendants violated their trust and contractual obligation in disposing of it as alleged in the complaint. —State Council v. Sharp, 38 N. J. Eq. 24; Knights of Pythias v. Germania Lodge, 56 N. J. Eq. 63.
In these cases the facts were very like the facts in the present case, and the law, as therein announced, is particularly applicable to the question here involved.
‘ ‘ The defendants have willfully violated the law of the society in dividing up its funds among themselves and taking them to their own use. Of these funds, part, at least (that called the widows’ and orphans’ fund), was the accretion of years, and it is highly probable that others than they made some of the contributions from which, during those years, it has been accumulated. But from whomsoever derived, the money in question, the council and widows’ and orphans’ funds, was contributed under the charter for and dedicated to certain specified purposes, for which it was, from the time when it was contributed, held in trust by the society and its officers to whose hands it was committed or to whose control it was subjected. It was held by them subject also to the trust to pay it over to the state council in case of the dissolution of 'the subordinate one. The defendants, therefore, had no right to take the money. It is within the jurisdiction of this court to grant the relief which the complaint seeks.”
The further contention of defendants in error is, that the subordinate lodge (being a corporation under the laws of the state), suit should be brought against it, at least in the first instance, and not against these individual defendants for any relief to which the grand lodge may be entitled. Answering a similar objection urged in State Council v. Sharp, the chancellor said:
“The fact that the subordinate council was incorporated does not affect the right of the complainant to recover the moneys received by the defendants. The complainant has a right to follow the trust funds into the hands of the defendants.”
Our conclusion is, that the complaint states a cause of action against the defendants, and that un
The judgment is reversed, and the canse remanded. Reversed and remanded.
Chiee Justice Steele and Mr. Justice Bailey concur.