Trustees of Rex Hospital v. Crow

Hoke, J. In addition to the facts heretofore stated, it further appears that John Rex died on 29 January, 1839, leaving, a last will and testament duly admitted to probate in February following, in which he devised 21 acres of land lying in the southern part of the city of *743 Raleigb to Duncan Cameron and George W. Mordecai, trustees, for the purpose of having erected thereon an infirmary or hospital for the sick and afflicted poor of the city of Ealeigh, and bequeathed to said trustees' also, for the endowment of said hospital, his money and personal estate, etc., to be held by said trustees and their successors to be duly appointed, in trust forever, for the erection and endowment of said hospital, and for no other use and purpose whatsoever, "etc. That there being no adequate "provision in said will for the appointment of trustees, etc., for the proper and continued governance of said hospital, the Legislature, at the suggestion of said trustees named in the will, and others, at the January Session, 1841, enacted a statute incorporating the hospital and providing a method for the appointment of said trustees and their successors, and empowering them to “receive and hold the property and effects devised and bequeathed by said John Eex in and by his said will, and to use and apply the same to and for the purposes, and none other, specified in said will, and also to receive donations of land and personal estate by deed or will for the purposes aforesaid and none other, and to have succession and to sue and be sued, and have the other powers incident to corporations in regard to the charity created by said will, and for no other purposes, etc.” It will thus be seen that under the provisions of the Barbee deed the trustees named therein have full power to mortgage the property conveyed to them to secure any debt due or to become due by the trustees of Eex Hospital, incurred for the legitimate purposes of the institution, and it becomes their duty to do so for such purposes at the instance of the trustees of said hospital, when definitely and properly determined upon and communicated to them, a duty enforceable by appropriate action or proceedings in the courts. Thomson v. Newlin, 41 N. C., 380; Cox v. Williams, 39 N. C., 15; 39 Cyc., 510; 36 R. C. L., 1358 et seq. And this being an active trust (Kirkman v. Holland, 139 N. C., 185; 39 Cyc., 213), and there being nothing anywhere in the charter in contravention or restriction of this power to mortgage, his Honor was clearly right in the ruling that the defendants carry out and perform the duties placed upon them by the deed under which they hold the property. Paper Co. v. Chronicle, 115 N. C., 143; Clark on Corporations, 133-134 et seq; C. S., 1126. There is no error, and this will be certified that the judgment entered be Affirmed.