Leonard v. Darlington

6 Cal. 123 | Cal. | 1856

Lead Opinion

This case was decided in the January Term, the opinion of the Court being delivered by Mr. Justice Terry,

and Mr. Justice Heydenfeldt concurring.

This was an action of ejectment for a lot in San Francisco. The right of the plaintiff to recover, depends on the validity of a certain deed signed by P. A. Morse, Wrn. Hooper and Beverly Q. Sanders, styling themselves, Acting Commissioners of the funded debt of the city of San Francisco, conveying the lot in controversy to the grantor of plaintiff.

By the Act authorizing the funding of the floating debt of the city of San Francisco, passed May 1st, 1851, five persons named in said Act are constituted Commissioners, and power is given to them and their successors, to be appointed as provided in the Act, to receive from the Commissioners of the Sinking Fund, appointed by the Common Council of said city, a conveyance of all the the property of said city, and to sell or lease the property so conveyed, and apply the proceeds to liquidate the debt of said city.

There is no provision of said Act, authorizing a majority, or a less number than the whole of said commissioners, to sell or convey any portion of the property. It is contended by counsel for plaintiff, that the commissioners of the funded debt are public officers, appointed for a public purpose, and though all should meet and consult, the act o the majority is the act of the whole. I do not think this point well taken. The powers conferred on the commissioners were similar in their nature to those of assignees in bankruptcy; they were to receive from the Commissioners of the Sinking Fund a conveyance of certain property, which was to be applied to the payment of the debts then due, and the remainder, if any, after the extinguishment of the debts, was to be re-conveyed to the debtor.

The Act of the Legislature, and the conveyance executed in pursu-anee to its provisions, vested the property in the Jive commissioners trustees, in trust, for the'payment of the debts of the corporation.

In Townsend v. Wilson, 1 Barnwell & Alderson, p. 608, the Court held, “ That when a power of sale was reserved to three trustees and their heirs, and there was power to appoint new trustees, the two surviving trustees could not execute the power.” See also 1 Sugden on Powers 78, 2 B. & A., 405; 2 Sum., 264.

The deed in question being the act of only a portion of the commissioners, did not pass a title sufficient to maintain this action. There are numerous other assignments of error by appellant which it is not deemed necessary to advert to in this opinion—indeed, the record is so encumbered with a mass of matter altogether foreign to the case, that it would be an act of injustice to compel the respondent to reimburse the appellant for the unnecessary expense of the transcript.

The judgment is reversed with costs, except the costs of the transcript of the record, and the cause remanded.

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Rehearing

A re-hearing being granted, the following opinion was delivered at the April Term, by Mr. Justice Terry,

Mr. Chief Justice Murray concurring :

After a careful consideration of the argument and authorities submitted by counsel on the re-hearing of this cause, we see no reason to doubt the correctness of the opinion heretofore delivered.

It is contended by counsel for respondents, that the commissioners of the funded debt constituted a public Board for public purposes, and therefore the act of a majority is valid and binding, as the act of the board. The authorities all agree that although a majority of public commissioners may control, yet it is necessary that all should meet and consult, or have notice of the time and place of meeting, that they may attend if they desire to do so.

It appears that on the 15th of May, 1851, the commissioners met and passed a resolution, to the effect that they would sell or lease at auction, all the real property of the city which should come into their hands; no time, place or terms of sale were agreed on, nor was it determined what number of lots should be sold. It does not appear that anything was done under that resolution.

In July, 1852, three members of the board met and resolved to sell the lot in controversy, with others, specifying the time, place and terms of the sale, and the character of the funds to be received in payment of lots purchased at such sale; at the time of this meeting J. W. Geary, one of the commissioners, had resigned, and D. J. Tallant was absent from the State, and had no notice of the meeting; so that conceding the point contended for by respondents, the sale is invalid, tested by the authorities cited by himself.

For these reasons, in addition to those given in a former opinion, we • are satisfied that the judgment of the Court below is erroneous. It is therefore reversed with costs.