114 Ind. 347 | Ind. | 1888
The complaint of the appellant alleges that the appellees executed a bond payable to the State of Indiana in the penal sum of seven thousand dollars, conditioned as follows: “ The condition of the above obligation is, that the above bound Solomon Longnccker has been by an order of the Dearborn Circuit Court, made at its September term, 1876, appointed trustee for Louisa B. Dair in the suit of the said Louisa B. Dair against William Dair and others for partition. That the said Louisa B. Dair being the widow of James Dair, deceased, and by him having no child living, and the said James Dair having left children by a former wife, and the said Louisa B. Dair being only entitled to a life estate in the real estate of her said husband, and the real estate asked to be partitioned, in the above named suit, being found not susceptible of division among the heirs and owners thereof, was ordered by the court to be sold, and that Samuel Z. Brackenridge was appointed commissioner
The appellees argue that the action can not be maintained because the complaint charges that Longnecker l’eceived the money as the trustee of an express trust, and that, as there was no writing creating the trust, it was void. In support 'of this position counsel refer us to section 2969, E. S. 1881. We do not think that statute has anything to do with the case. If Longnecker received the money of the obligees as their trustee, he can not make it his own by means of the statute. The statute has not the remotest bearing upon the question.
It may be that there were irregularities in the proceedings of the court, but if it possessed jurisdiction the bond is not void. We agree with appellees’ counsel that a bond taken by a court in a matter over which it has no jurisdiction is not valid; but we can not agree that there was no jurisdiction of the trust in which this bond was given. The bond was not given in the partition suit, but was executed under the agreement of the parties to enable the trustee to receive'the money realized by the commissioner from the sale of the land and then in his hands. It was not an agreement affecting the land nor the partition suit-, but it was an agreement constituting Longnecker a trustee to receive monvy at the-time under the control of the court. The agreement was sanctioned by the court and the trustee’s bond duly approved. The trust, therefore,' came within the jurisdiction of the court. By virtue of the statute, as well as by virtue of the inherent chancery powers possessed by all our courts of general superior jurisdiction, the circuit court had jurisdiction of the trust. This has been expressly decided, and the decisions are founded on solid principle. Coggeshall v. State, ex rel., 112 Ind. 561 ; Bates v. State, ex rel., 75 Ind. 463; Tucker
The circuit court had jurisdiction to give effect to the appointment of Longneckcr and to approve his bond. It also had jurisdiction to appoint the relator as his successor, for it is a fundamental principle of equity that courts will not permit a trust to fail for want of a trustee.
Judgment reversed, with instructions to overrule the demurrer to the complaint.'