Colburn v. Broughton

GOLDTHWAITE, J. 1. The first questions which demand our attention are those which arise out of the demurrers to the bill, inasmuch as, if that is defective it becomes'a matter of minor importance to consider whether the complainants are entitled to relief in some other mode. The objection is made to the bill, that’it is multifarious, in combining together several distinct matters, which have no necessary connection with each other, and that parties are' joined, both as'plaintiffs and defendants, who have no interest in some of the objects of the bill. The rule, as recognized in this court is, that the bill must set forth several distinct matters, perfectly unconnected, (Chapman v. Chinn, 5 Ala. Rep. 397,) or where the case of each defendant is entirely distinct and separate in its subject matter; from that of the other defendants. [Kennedy v. Kennedy, 2 Ala. Rep. 571.] This case comes precisely within these rules in one aspect in which it may be viewed. So far as the defendant, Broughton, is sought to be made liable as the adniinistrator of Coo¡idge, for trust funds received and not accounted for by his intestate, and also so far as he is sought to be charged as administrator de bonis non for the Ballard slaves, recovered and sold under the execution of the previous administrator, there seems to be no connection whatever with the other defendants, who are sought to be made liable for the specific property purchased by them at the coroner’s sale. The liability of Coolidge’s estate to account for his action as trustee, is a matter with which those claiming a title to the slaves adversely to that trust have nothing to do. 2. In like manner, if Broughton was the sole defendant to this bill, it would be obnoxious to the exception that- the complainants were improperly joined. One object of the bill [362] is, to compel him to account for the profits of the trust estate received and converted by him; and these, according to the showing of the bill itself, were belonging to Mrs. Colburn alone, without the slightest interest whatever being vested in her children, her co-complainants. Where parties are joined as complainants who have no interest in the matter in controversy, the bill is bad on demurrer. [Whittaker v. De Graffenreid, 6 Ala. Rep. 303.] 3. But there is a more serious objection yet to the bill, so far as the individual purchasers at the coroner’s sale are connected with it. We readily concede that a purchaser of trust property fi;om, or under the trustee, with notice of the trust, is himself chargeable in equity as a trustee. But here there is nothing to connect these individuals with the trustee, and they claim adversely to him; it is not his title which they held, or one derived through him, but their claim, if good at all, is so entirely independent of the trust deed. To insist that equity can take jurisdiction of a title thus disputed, would invest it with cognizance of all disputes concerning property upon which a trust had ever been created. It is entirely evident, that property held in trust is as much the subject of inquiry'as that which is not, but it is too common a mistake to suppose the creation of a trust carries the property itself into equity. The law usually provides a different and more appropriate forum to determine conflicting and adverse titles to the property. We fully recognize the rule, that a purchaser of trust property from, or under the trustee, with notice of the trust, is himself chargeable in equity as a trustee. [Bank of Alabama v. Williamson, 7 Ala. Rep. 906.] But according to the allegations of the bill, Broughton never had possession of the property sold, as the administrator of Coolidge, and was not therefore affected by the obligations which his intestate had assumed with relation to it. He obtains a judgment against Colburn, and directs a levy upon property which that person is supposed to own. In doing this, we apprehend he stands as any other plaintiff who wrongfully directs a levy, and is responsible to the injured party in trespass or trover. The title sold under his execution, was not the title of Coolidge, the trustee, but that of a third person, which, if defective, invests the pur [363] chaser with one that is of the same nature. Whatever maybe the merits of this title, the purchaser it is evident, does not derive it from the trustee, either mediately or immediately, and in no sense can be said to be in collusion with, or holding under him. In point of fact, the whole case, as to these purchasers, makes it apparent they claim adversely to the trust estate, and in spite of it. It is then, as to all the defendants except the husband, an attempt to litigate the title to personal property in a court of equity. We know of no condition of facts under which a court of this description can determine such a question. Doubtless a cestui que trust may go into equity to prevent a sale of the trust estate, until the right can be ascertained elsewhere. To this effect is Cozzens v. Calhoun, 3 Ala. Rep. 498, where an injunction was sustained by a feme covert to restrain her husband’s creditor from selling her separate estate. Here, however, the property has already been converted, and the suit is, to regain, or have satisfaction for it, from persons who neither claim under, or are in privity with the trustee. 4. The mere circumstance that a trust is created upon certain property, does not invest a court of Chancery with jurisdiction to determine the disputes which may arise with respect to the title to that property. If it was so every cestui que trust might sue in equity, instead of his trustee at law for injuries done to it. Lord Redesdale said, a cestui que trust is always barred by length of time operating against the trustee. If the latter does not enter, and the cestui que trust does not compel him to enter as to the person claiming paramount, the cestui que, trust is barred. [Hovenden v. Lord Annesly, 2 Sch. & Lef. 629.] And Lord Hardwick had long before held, the rule applied only as between cestui que trust and trustee, and not between them- on one side and a stranger on the other. [Lewellen v. Mackworth, 2 Equity Ca. Ab. 579.] In Finch’s case, 4 Inst. 85, so long ago as the reign of Elizabeth, it was resolved by all the judges, that a disseisor was subject to no trust, nor any subpcena was maintainable against him: not only because he was in the post, but because the right of inheritance or freehold was determinable at the common law, and not in Chancery; neither had the cestui que trust any remedy in that case. To the same [364] effect is Mr. Sugden, in his edition of Gilbert on Uses, 429, note G., who there says, that persons claiming tho legal estate by an actual disseisin, without collusion with the trustee, will not 'be bound by the trust. Therefore, if J oust A, who is a trustee for B, and a claim is not made in due time, A will be barred, and his cestui que trust with him, although J had notice of the trust. These citations seem conclusive to show, that the creation of a trust has no effect to draw the contests with respect to the title of the property to a court of Chancery, and that it is only persons who are trustees, or who claim under such, or by collusion with them, who are accountable to the cestui que trust. ■, 5. But it is insisted by the bill, that after the death of Coolidge, the trust ceased, or rather, that at the time of filing the bill, there was no trustee capable to sue, and therefore the jurisdiction is maintainable. Doubtless such a condition of things might furnish sufficient equity for a bill to prevent a sale or removal of the property beyond the jurisdiction of the court, until a trustee could be appointed, but it furnishes no ground for investigating the legal title with a bona fide adverse claimant. And, indeed, tho necessity to even file a bill of this nature, is greatly lessened by our statutes authorizing the summary appointment of trustees. [See Clay’s Dig. 581.] At common law, trusts partook of the nature of the trust property, and if that was real, descended to the heir, and was capable of being devised; if personal, the trust went to the administrator. This necessarily produced great difficulties even in England, where the bulk of personal property is not so locomotive as with us, and has caused the enactment of statutes similar in some respects to our own on the same subject. [See Lowin on Trusts, 473, 242.] It appears from tho bill, that Mrs. Colburn, immediately after the death of Coolidge, in 1838, procured the appointment of a trustee in his stead, and the consequence of this was to prevent any right in this respect from passing to his personal representative. Whatever was the condition of the trust estate at that time, the effect of the appointment was to make the representatives of Coolidge entire strangers to it except so far as that or its proceeds had come to their hands. 6. The trusteeship being thus severed from the adminis [365] tration, could never be again united with it; and therefore, conceding the appointment of Gailliard to be temporary only, this circumstance creates no new and distinct ground upon which the jurisdiction of equity can attach, except for the limited purposes already shown. The conclusions already arrived at, show the bill was properly dismissed, without reference to the intrinsic merits of the complainant’s title to relief; beyond this too, they show that the relief for the conversion of the slaves, as well as for their recovery, must be sought in a court of law. 7. But as the equitable right of Mrs. Colburn to have an account from the estate of Coolidge, of the funds received by him as trustee, may induce another suit, we deem it proper to express an opinion, that whatever may be the merits of these conveyances, as between the creditors of Colburn, and' the cestui que trusts, his representatives are estopped from setting up another title than the one under which the intestate held. Notwithstanding his liability to account, it may well deserve consideration, what assets could remain in his hands, when it is made to appear that the whole proceeds of the trust property worked on the plantation was insufficient to support the family. With respect to the legal title under the deeds, and to the barouche and horses, it is improper to express our judgment, as the title has not yet received the consideration of the proper court. If further proceedings are considered as desirable it is not irrelevant to remark, that a distinction may be found to exist between the title conveyed by Bradford and that derived from Colburn, and a similar remark maybe made with relation to the barouche and horses. Decree affirmed.