14 F. Cas. 414 | U.S. Circuit Court for the District of Southern Alabama | 1876
Complainant’s claim is that he is still trustee under the deed of trust, and that Duncan and Elliott are not; that the proceedings in the Mobile chancery court which took place during the war of the Rebellion, and while he was a citizen oí, and actually residing in New York, were entirely ineffectual to remove him from his trusteeship, which was not only an office but an estate, and were absolutely null and void; that the court, by the publication of a notice which could not lawfully reach him. acquired no jurisdiction over his person, and
The court was called on to act in the conservation of an immense property lying within its jurisdiction, in which thousands of persons, among them aliens, married women, infants and trustees were interested. The court acts to preserve this property, and acts in strict conformity to the law of the land in which it sits. Can it be possible that the proceedings of the court are absolutely void because service was not made upon a naked trustee whom it was impossible to serve? Is the removal of a trustee, incapable of acting, and the appointment of another to act in behalf of such a trust, one of the class of decrees declared by the authorities to be void because the removed trustee was beyond the military lines and could not be served? In my judgment, the chancery court, under the circumstances of this ease, had jurisdiction, and it would have been its duty, even in an ex parte proceeding, to appoint a Trustee to administer this trust. The war might have lasted twenty years, during all which time it would have been impossible to serve the absent trustee. It seems to me to be a very unreasonable proposition, that during all this time a court ex cnancery must see the trust estate perishing for want of a trustee, and, refuse to act on the ground that a naked trustee, whom it was impossible to serve, had not been served with process. The proceedings were not absolutely void. It was at least effectual for the valid appointment of trustees to act during the disability of the original surviving trustee, even without notice to him. McCosker v. Brady, 1 Barb. Ch. 329; In re Mais, 12 Eng. Law & Eq. 306; Ex parte Hardman, 3 Mont. D. & D. 559. This view is also supported by the language used by the supreme court of the United States in the case of Horn v. Lockhart, 17 Wall. [84 U. S.] 580. ‘‘We admit,” says the court, “that the acts of the several states, in their individual capacities and of their different departments of government, executive, judicial and legislative, during the war, so far as they did not impair, or tend to impair, the supremacy of the national authority or the just rights of citizens under the constitution, are in general to be treated as valid and binding. The existence of a state of insurrection and wav did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced. estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial or legislative acts, in the insurrectionary states, touching these and kindred subjects, where they were not hostile in their puipose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the constitution.”
If the decree of the Mobile chancery court was not absolutely void, it was the duty of Ketchum, as soon as peace was restored, to assert his right to the office of trustee. He says by implication, in his bill, that in 18GD •he learned of the decree which purported to remove him and appoint other trustees in his stead. The laws of Alabama gave him until the 26th of June, 1SU9. to appiy to the court to open its decree and allow him to make his defense to the bill. He never made such application. On the contrary, although important duties, such as making conveyances for lands sold, were imposed upon him by the deed of trust, although the same instrument required annual reports to be made by him to the railroad company, he never did any act of any kind under liis trust, held no communication with the railroad company, its officers or agents, in reference thereto, and set up no claim to the office of trustee until the filing of his bill in this case, in March. 1870. in the meantime, the trustees appointed in his stead were active in the discharge of their duties, were making conveyances to vast quantities of the trust lands sold by the rail
