State v. Rice, 65 Ala. 83

State v. Rice

65 Ala. 83 | Ala. | 1880

BRICBELL, C. J.

— It is urged by the appellees, that the demurrer to the bill, because of a misjoinder of complainants, was well taken, and should have been sustained ; and consequently, if the court erred in not granting the appellants larger relief, it was error without injury, as they were not entitled to any relief under the bill as framed. Whether there is or is not a misjoinder of complainants, is not a question now presented by the assignment of errors, and could not be considered and determined without manifest injustice. If the misjoinder exists, it is capable of correction by amendment in the Court of Chancery; and of the right of amendment, the complainant, if entitled to relief, can not be deprived by the affirmance of an erroneous decree, withholding from him the full measure of relief which may be awarded when the misjoinder is cured.

The special statute in reference to this township, approved February 5th, 1858, directs that all notes belonging to the township shall be delivered to the trustees. (The trustees of the schools of the township are intended, though not so directly expressed.) They are empowered to sue for and recover the amount of said notes in their corporate name, or in the name of the State of Alabama for their use. The amount realized from such notes, it is their duty to keep and preserve, for the use of schools; and they were further empow*87ered to loan moneys collected, taking notes with two good sureties. — Pamph. Acts 1857-8, p. 277. The principal question of the case is the validity of the mortgage, as a security for the payment of the note given by Bice to the trustees, in lieu of the notes given by Beynolds, the purchaser of a part of the sixteenth-section lands, whose notes were in the possession of the trustees, and for the collection of which they were responsible.

It is admitted, that the operation of the statute is to convert the trustees into a gmsi-corporation, for the purposes and ends which are designated. They are clothed with specific powers, charged with particular duties, and subjected to a strict accountability for the performance of such duties. They have no other capacity or power than that which is expressly conferred, or which is necessary to enable them to carry into effect the purposes of the statute. The property which passes under their control, and which they are required to keep and preserve, so far as is practicable, as a perpetual interest-bearing fund, consisted of choses in action, — of debts due from others. These they were to sue for, and recover, — in other words, to reduce to money, — whenever, and as was necessary to keep and preserve them as a fund bearing an interest of not less than eight per cent, per annum; and for any loss of such debts, or of' such funds, they were made personally responsible. The loaning of moneys coming to their custody, is one of their express powers and duties. The express power to take mortgages as a security for a debt presently contracted, or a preexisting debt, is not conferred; but it is, of necessity, involved in, and incidental to, the powers conferred and the duties imposed. Any corporation, public or private, if not prohibited, has capacity to take a mortgage of lands or chattels, as a security for a debt contracted with it in furtherance of the objects of its creation. — 1 Jones on Mortgages, §134; Angelí & Ames on Corporations, § 156. It would be singular, and would thwart, instead of promoting the purposes of the statute, if a gwasi-public corporation, created for the purposes, and charged with the duties which are imposed on these trustees, had not the capacity to secure, in any legitimate mode, the payment of the debts due to it. In the course of events, the security of'such debts may, without fault or neglect on their- part, become precarious; and if it should, they would be derelict in duty, if they did not seek better security. Such, we think, is their duty, and that they have a large discretion in selecting the security which they will accept.

In the present case, the mortgage Beynolds had executed to his sureties, Bast and McCord, was but a security for the *88payment of tbe debt to the trustees, enuring to their benefit, and to which a court of equity would have subrogated them. Without their consent, it could not have been removed as an incumbrance on the property. When Reynolds sold and conveyed to Rice, it was removed with their consent, upon the payment of a part of tbe debt, and the execution of the new mortgage by Rice to secure tbe balance of it. Tbe transaction, in its results, simply accomplished that which could have been accomplisbed by a decree of a court of equity; and tbe mortgage is a valid security for tbe payment of tbe debt, and as such should be foreclosed.

Let tbe decree be reversed, and the cause remanded, for further proceedings not inconsistent with this opinion.