23 App. D.C. 129 | D.C. Cir. | 1904
delivered the opinion of the Court:
The proceedings in this case have been instituted under §§ 534, 537, and 538 of the Code of Law for the District, which provide summary proceedings for the appointment of a new trustee to execute the trusts of a mortgage, or deed of trust by way of mortgage, or to release the same, when a former trustee has died, or has removed out of the jurisdiction, or is unable to act, or any other good cause is shown for such appointment. These sections provide for the filing of a petition in the court of equity by any party interested stating the appropriate facts and asking for such appointment; for the issue of a rule thereon to show cause within ten days, to be served upon the existing trustee, if one there is, and upon the debtor or creditor, as the case may be; and for summary proceedings thereon to ascertain the existence of the debt, or its payment, as the case may be, and for the appointment of a new trustee for the purpose required. They further provide that it shall not be necessary to make the heirs at law or devisees of a deceased trustee parties to the suit; and that, if the adverse parties beneficially interested in the mortgage or deed of trust cannot be found in the District, service of the rule to show cause should be had upon them by publication, according to the practice in equity.
Whether these provisions of the Code were intended to supersede the former course of procedure in equity for the removal isand appointment of trustees, it is unnecessary to inquire. They
Removal from the jurisdiction or absconding in such manner that he cannot be found within the jurisdiction has always.
Such being the tenure upon which he has received and holds the legal estate, it is competent for the legislative authority to provide a summary mode for his removal, and for the devesting of his title, as by the Code it has been sought to do. It is competent for the legislature to enact that the legal title shall not descend to the heirs of the trustee, or that, if it does descend, it may be disregarded and may be reinvested in some appointee of the court without reference to such heirs. There is no constitutional or fundamental right of property impaired by such provision; for the trustee is substantially no more tiran an agent of the mortgagor and mortgagee or cestui que trust to carry into effect the contract between them, for which purpose and only for which purpose he is vested with the legal title without beneficial interest therein. This is no more than elementary law in equity; and the legislative authority, by the sections of the Code which have been cited, has only given a summary remedy in the place of the former more formal remedy, or one supplementary thereto.
In these summary proceedings so little is the title of the trustee regarded as compared with the substantial interests of
In the present case it is admitted that the person whom it is desired to replace as trustee has absconded, or at least departed from the jurisdiction, and that his present whereabouts are unknown. The precise condition, therefore, has arisen in which the statute provides for the appointment of a new trustee in his place. Such absence had primarily been shown by the failure of the mai’shal to find him for the service of process upon him; and the admission of the defendants completed the proof of the fact. It is not apparent what purpose could have been sub-served by publication against such absconding party. Such publication would have been proper enough, perhaps, in the old plenary proceedings, wherein more regard was had for the legal title vested in the trustee than is evidenced by the Code; but it would have added nothing to the proof of absence from the jurisdiction; and it is the fact of absence from the jurisdiction that operates, when proved in a court of equity, to devest the title of the trustee, and to authorize that court to appoint another person in his place.
We are of opinion that the court was justified in rendering the decree which it did in this case, and that there is no error in such decree. The decree will be affirmed with costs. And it is so ordered. Affirmed.