131 Ind. 342 | Ind. | 1892
This action was brought by the appellant, Frank S. Roby, trustee, to foreclose a mortgage on real estate situate in Steuben county, in this State.
In addition to the usual averments, the complaint shows that in September, 1889, The George T. Smith Middlings Purifier Company was the holder of four promissory notes signed by the Steuben Mill Company ; that on or about .the 1st day of October, 1889, the Purifier Company sold and assigned these notes to certain banks in the State of Michigan, the notes being endorsed by George T. Smith ; that at the time of the sale and assignment of these notes the company, by its officers, stated and represented that the notes were secured by a first mortgage on certain mill property situated in Steuben county; that, at that time, the notes were not in fact secured by mortgage, but subsequently, on the 24th day of January, 1890, the said George T. Smith, who held the title
Demurrers, filed by each of the defendants, were sustained, to the complaint, and final judgment rendered on demurrer for the defendants.
The ruling upon the demurrer is the only question in the record.
The correctness of this ruling depends upon the validity, and construction to be given to section 2988, R. S. 1881, in
The constitutionality of this act is vigorously assailed by counsel for the appellant.
It is claimed that this act limits the constitutional rights of citizens of this State to select and appoint their own agents in the control and management of their own property, which is one of the inherent and inalienable rights of a citizen.
The facts of this case do not require us to enter into a discussion of this question.
The contract was entered into in the State of Michigan, by and between citizens of that State, to secure an indebtedness expressly payable in that State. It was to all intents and purposes a Michigan contract, except that the land being situate within this State, the mortgage, which is a qualified conveyance of real estate, is subject to the law of the State, so far as it affects the validity and enforcement of the lien. 1 Jones Mortg., section 662.
The rights of the citizens of this State to appoint non-resident trustees are not involved in this case.
Another question involved in the consideration of the constitutionality of the act under consideration may be excluded from the present discussion : that is the right of a non-resident trustee to prosecute in the courts of this State actions affecting the trust property.
We infer from the last clause of the section that it was the
In the present action the suit was brought by a resident trustee who owed his appointment to the order of the court, and not to the act of the parties.
We have remaining for determination the question, does, or does not, this act, as applied to the facts disclosed in the record, impair the privileges and immunities of citizens of another State or of the United States, as guaranteed in article 4, section 2, and the Fourteenth Amendment of the Constitution of the United States?
The constitutionality of this act has never been passed upon by this eourt, although the question seems more than once to have been in the mind of the court.
In holding that this act did not apply to the trustees appointed prior to the passage of the act, the court, in Thompson v. Edwards, 85 Ind. 414, said: “ Waiving all discussion as to the power of the Legislature to enact such a statute as applicable to trustees to be thereafter appointed, it is manifest,” etc.
In Bryant v. Richardson, 126 Ind. 145 (153), it is said that it “ may well be doubted ” if that portion of this statute which applies to natural persons and seeks to prohibit them from naming a person who is a non-resident of the State to act as a trustee for them is valid.
In Farmers’, etc., Co. v. Chicago, etc., R. W. Co., 27 Fed. R. 146, Gresham, J., said of this statute : “ It is a statute which denies to residents of other States the right to take and hold in trust, otherwise than by last will and testament, real and personal property in Indiana. The right is asserted to deny to persons, associations, or corporations, within or without the State, power to convey to any person in trust, not a resident of Indiana, real or personal property within the State. This is a plain discrimination against the
In that case one of the trustees, at the time of the creation of the trust, was a resident of the State. The resident trustee having died, the action was prosecuted by the surviving and non-resident trustee. The fact that the language above cited was not strictly essential to the determination of the case before the court may impair the force of the decision as
Eeluctant as we are to hold a statute regularly enacted by the General Assembly unconstitutional, we ca!n not avoid the conclusion that the act under consideration is in conflict with those provisions of the Constitution of the United States which guarantee to the citizens of each State, and of the United States, all the privileges and immunities of citizens of the several States.
The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
Elliott, C. J., did not sit, and took no part in the decision of this case.