15 Ala. 722 | Ala. | 1849
The circuit court should have visited the demurrer to the replication to the first plea, on the plea itself. It is provided by the act of 1824, that “No cause shall be reversed, arrested, or otherwise set aside, after verdict or judgment, for any matter on the face of the pleadings not previously objected to : Provided, the declaration contains a substantial cause of action, and a material issue be tried thereon.” Clay’s Dig. 322 § 53. This enactment only inhibits the reversal of a judgment for a matter not objected to, previous to verdict or judgment, but does not forbid that a judgment shall be affirmed, by reference to a matter apparent upon the record, to which the attention of the primary court was not called, otherwise than by the rules of law operating upon the pleadings. To a case thus sitnated, the act does not apply, but the law remains unchanged in respect to it; and as it would have been proper for an appellate court, previous to its passage, to have looked to the plea, it is still an imperative duty to do so. Kent v. Long, 8 Ala. R. 44, is unlike the present case. There the defendant demurred to the plaintiff’s replication to his plea, but pointed out no objection to the decía-* ration. This court was of opinion that the circuit court properly overruled the demurrer, and refused to visit it upon the declaration, which it was supposed joined counts in case and assumpsit, because the objection was not pointed out before “ verdict or judgment,” and the declaration contained a substantial cause of action, on which a material issue was tried. The judgment was consequently affirmed under the influence of the act cited. This view relieves us from the necessity of considering the sufficiency of the replication.
The secnod plea is defective, because it does not specially set out the manner in which the sale was canceled, that it may be seen that the cancelation was according to the provisions of the act, which furniseed the only warrant, at the time the plea was interposed, by which it could be done. True it is stated, that the contract was rescinded by the electors in the township, but the modus operandi of their action does not appear, otherwise than by a general allegation, that the rescission was “ according to-the provisions of law, &c.” These latter words merely affirm a legal conclusion of the pleader, without any basis either preceding or following them, on which it can rest for support. A plea must state facts, that the court may be able to say, from its inspection, that it is an answer to the action, and that the plaintiff may understandingly reply to it. It is too clear for argument, that the second plea does not conform to this requisition.
In addition to the personal security which the purchaser of the whole, or part of a sixteenth section, is required to give, an equitable lien is retained by the vendor for the payment of the purchase money; not in virtue of any express contract, but it results from the retention of the legal title until full payment is made. The enactment then, if within the competency of the legislature, was wholly unnecessary, as a means of securing to the “ inhabitants” of the township the proceeds of a sale. In addition to the equitable lien, there may be in the most, if not all the cases, for which it proposes to provide, other available remedies, by which a collection of the purchase money may be enforced. In the first ease, though the purchaser has removed from the state, he may have left sureties, who are able to respond: in the second, the same state of things may exist, though the purchaser, has died insolvent: in the third and fourth, although the statute of limitations may bar an action on the notes, still the equitable lien may be enforced. Doe ex dem. Duval’s heirs v. McLoskey, 1 Ala. Rep. 708; Inge et al. v. Boardman, 2 Ala. R. 331. In providing that a plea in a previous action, on one of the notes, defeating a recovery upon a ground which maintained the invalidity of the contract of sale, that may, perhaps, be regarded as declaratory of what was previously the law. Rakes’ adm’r. v. Pope, 7 Ala. Rep. 161. Conceding this to be so, and still the plea we are considering is defective, in not reciting the substance of the facts set forth in the plea, by which the defendant defeated a recovery in the previous suit. It merely sets out, by way of inducement, a recital of so much of the 13th section of the statute as was deemed pertinent, avers that the note declared on, was given for the sixteenth secton particularly designated — that all the
We noW, propose to show, that the section in question, so far as it attempts to annul, or rescind the contract of sale, is an interference with the rights of others — the exercise of a power beyond the functions of legislation, and of consequence inoperative. In Long & Long v. Brown et al. 4 Ala. Rep. 622, it was held that the grant of sixteenth* sections, by the act of congress, of the second of March 1819, is in perpetuity to the inhabitants of the several townships, but the legal title to the land is in the state, in trust for the inhabitants of the respective townships in which the same may be situated: Further, th at the act of thelegislature of 1828, authorizing the sale of the sixteenth section, in each township, with the assent of the inhabitants thereof, and providing for the profitable investment of the proceeds, was valid: and that a sale pursuant to the act, the payment of the purchase money, especially when-evidenced by a patent to the pur
We may, however, add several well settled principles, which show the correctness of the conclusion we have stated, viz: the legal estate of the trustee shall not be carried further than the complete execution of the trust necessarily requires. Lewen on Trusts, 234, et seq. A trustee cannot, under a simple trust, exercise any dominion or control over the trust property, except it be in defence, or protection of the estate. Id. 412. Again : one who accepts a trust, takes it for the benefit of the cestui que trust, and not for any advantage to himself; as a further consequence of this rule, the beneficiary will not, in general, be subject to any disadvantage which may arise from the trustee personally, on account of his being seized of the legal estate; nor will he be prejudiced by the trustee doing what the trust does not authorize, or injured by his not doing that which it was his duty to perform. Willis’ Trustees, 121. Further, the trustee must be careful to execute the trust faithfully according to its terms and the intention of the party by whom it was created; he is bound not to do any thing to defeat the trust reposed in him — has sometimes been injoined from doing so, and compelled to give security for its performance. Id. 124; Morris v. Clarkson, 1 Jac. & Walk. Rep. 107.
From this view, it results, that the thirteenth section of the