103 P.2d 7 | Colo. | 1940
REFERENCE will be made to the parties herein as they appeared in the trial court where defendants in error were plaintiffs and plaintiffs in error were defendants. On February 16, 1939, plaintiffs, alleging themselves to be holders of certificates of beneficial interests in the defendant District Landowners Trust, filed a complaint seeking the dissolution of the trust and the distribution of its assets to the beneficiaries. The complaint alleged that the trust was created by a written declaration on April 12, 1924, for a term of five years, for the purpose of completing an irrigation system and furnishing waters to lands, including those owned by plaintiffs, within what is known as the East Denver Municipal Irrigation District, now said to be dormant, but that said trust has failed to secure such water rights or construct such irrigation system, and will be unable to do so in the future, as a result of which the entire purpose of the trust has failed and there is no longer need to continue its existence. For a more detailed description of the trust, its history, character and purpose, reference may be had to the opinion in Landowners Trust v.Doherty,
[1-6] The only question before us in this proceeding is whether the district court had jurisdiction of the subject matter of the principal action, and, if having jurisdiction, it exceeded its authority in appointing a receiver. People ex rel. v. District Court,
[7] After an intensive study of the voluminous transcript of the evidence introduced at the receivership hearing, we do not believe we would be justified in saying that the trial court abused its discretion in making the appointment. Notwithstanding counsel on both sides have briefed and argued the proceeding in much the same manner as if the principal case was here upon review from a final judgment in favor of plaintiffs, obviously we cannot consider the matter upon that basis *126
(Boyd v. Brown,
[8, 9] Where certain beneficiaries of a trust allege they have an equitable right in, and claim to, the subject matter, as plaintiffs here assert, and as the proof prima facie indicates, they have the right to maintain the action and ask ancillary equitable relief without the joinder of other beneficiaries under the trust. Conroyv. Cover,
[10] We do not believe the provision in the eighth paragraph of the declaration of trust to the effect that the holder of a certificate of beneficial interest shall not have a right "to call for a partition or division of any account thereof in the courts, or to any right to institute a court proceeding of any nature whatsoever,except, at the expiration of the term of this trust, * * *," bars the plaintiffs from prosecuting either the principal or ancillary proceeding before us. It may be questioned, whether the restrictive provision quoted continued beyond the original five-year term fixed by the declaration of trust, but in any event, especially after the expiration of such period, it would seem certain that a beneficiary is not thereby precluded from asserting in court that the trust has expired and securing a judicial determination of this question. Obviously, if it is determined that the trust has not terminated, the restriction would be operative to the extent therein provided.
[11] Defendants further assert that plaintiffs have an adequate remedy for many of the matters of which complaint is made, particularly the alleged ultra vires acts, through injunctive relief, as a consequence of which they say a receiver should not be appointed. We are of the opinion that if the allegations of the receivership petition are true, as the trial court considered, that the suggested injunctive relief would not constitute a complete, adequate and effectual remedy to plaintiffs. In such case a receiver properly may be appointed. 53 C. J., p. 26, § 10. In this connection see Boyd v. Brown,supra.
[12] In view of the strained relations of long duration existing between defendants, plaintiffs and other landowners in the area which the trust was designed to develop, the defendants apparently have the *128 conviction, and so strenuously argue, that the appointment of a receiver solely will promote the interest of the plaintiffs, and other landowners not parties to the proceedings, to the jeopardy of the defendants and thus result in greater injury than is sought to be averted. The action of the trial court would indicate that it was satisfied that such apprehension was unfounded. It must be assumed that the receiver will proceed fairly and impartially in his official capacity for the protection of the trust and all parties in interest. In this connection we recommend, as we presume would follow in any event, that the trial court, as expeditiously as possible, proceed to a final determination of the issues in the principal cause.
The judgment is affirmed.
MR. JUSTICE FRANCIS E. BOUCK, MR. JUSTICE OTTO BOCK and MR. JUSTICE BURKE dissent.