Eastern Trust & Banking Co. v. Willis

6 App. D.C. 375 | D.C. Cir. | 1895

Mr. Justice Shepard

delivered the opinion of the Court:

1. The appellees renew in this court, under the agreed statement of facts, the defences made below, save that denying the right of the trustee to maintain the special possessory action provided in the statute (R. S. D. C, sec. 684).

That question has been settled by the decision in Loving v. Bartlett, 4 App. D. C. 1, wherein it was held by this court that purchasers claiming under a sale made by .trustees, in accordance with the provisions of an ordinary deed of trust, could- maintain the action as provided in that statute.

2. It is unnecessary to pass upon the regularity of the cei'tificate of the clerk of Penobscot County, Maine, to the official character of the notary public of that State, who certified to the acknowledgment of the execution of the trust deed, or upon the validity of the x'ecord of that instrument in the District of Columbia. The instrument was formally executed by the grantor and the grantee with their respective corporate seals, and regularly delivered to the latter, who held it in execution of the trust. Neither acknowledgment for record, nor record, were necessary to pass the title, or to protect the rights of the beneficiaries of the trust, as against an assignee for the benefit of creditors. Colbert v. Baetjer, 4 App. D. C. 416.

3. The objection that the appellant had no power to take under the conveyance, or to execute the trusts cx-eated thereby, is without merit. It was incorporated by special act of the legislature of Maine, and its domicile is in that State. The terms of the charter are ample to cover all the powers that it may exercise under said trust deed, and thei'e is nothing therein to indicate that its coi'porate powers can only be exercised within the limits of the State of its creation. Appellant had the undoubted right, in so far as its act of incox-poration is concerned, to do business in the District of Columbia, to accept trusts to be performed therein, and to sue in its courts. Bank of Augusta v. Earle, 13 Pet. 519. The mere fact that the laws prevailing in the District of Columbia at that time did not authorize the organization of corporations with the same powers that had been conferred upon appellant by the laws of Maine, is not sufficient to prevent it from the exercise of its powers in said District. A settled policy of prohibition is not to be inferred from the mere absence of legislation upon the subject. This is the well established doctrine of the Supreme Court of the United States. Cowell v. Springs Co., 100 U. S. 55, 59. In that case it was said: “If the policy of the State or Territory does not permit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way; it cannot be inferred from the fact that its legislatute has made no provision for the formation of similar corporations, or allows corporations to be formed only by general law.” See also Christian Union v. Yount, 101 U. S. 352, 356; Taylor on Corporations, sec. 384, and cases cited,

4. The judgment of the court of which appellant complains, proceeds upon the ground that appellant, in the execution of the trust, actually sold the property in controversy before commencing this proceeding; that its powers became exhausted thereby, and that the title and right to the property must be considered as having passed to the bidders at said sale notwithstanding the conveyance .had not been executed and delivered. This is a proceeding at law where recovery must be had upon the legal title; still it is not necessary to determine what weight should be given to that point had there been a regular and binding .sale by the trustee, lacking completion only in the execution and delivery of the evidence of title.

Passing by the question, which has not been argued, whether a valid sale could have been made under the trust deed, in Maine, of land situated in the District of Columbia, we find in the statement of facts that the offer for sale was made upon condition that the trustee should first obtain the possession of the property, when only it would be perfected. It is very doubtful, to say the least, if a valid sale could be made upon such condition. If it could not, however, the effect of the attempt would be to avoid the sale and not the condition. Under any view that might be taken, the trustee could not compel the purchaser to accept the conveyance and pay the purchase money, without the performance of the condition, or the waiver thereof by the purchaser.

Clearly, then, the trust has not been executed, the title has not passed out of the trustee, and the right of possession remains in it still.

For the reason given, the judgment must be reversed with costs to the appellant, and the cause remanded, with direction to render judgment for it upon the agreed statement of facts, in conformity with this opinion. It is so ordered.