German Land Ass'n v. Scholler

[338] By the Court — Wilson, C. J. — The German Land Association, being a mere voluntary association of persons unincorporated, had no legal capacity to take or hold real property. A grant to such association eo nomine would pass no legal title. Jackson vs. Cory, 8 John., 385; Hornbeck vs. Westbrook, 9 Id., 73; Jackson vs. Sisson, 2 John.'s Cases, 321; Sheppard's Touchstone, 235-6-7; Swaine vs. McCohany, 4 Ohio R., 157; Thomas vs. Marshfield, 10 Pick., 364. In this case the grant was notdirectly to the Association, but to T. and S. and II. in trust for the Association, and one question in the case is whether the beneficiaries are sufficiently described to enable the Court to execute the trust. Irrespective of the provisions of our statute, it would seem that this trust could not be sustained. Courts of equity carry trusts into effect only when they are of a certain and definite character. If, therefore, a trust is clearly created in a party, but the terms by which it is created are so vague and indefinite that courts of equity cannot clearly ascertain either the objects or the persons who are to take them, the trust will be held entirely to fail. 2 Story's Eq. Juris., 979 a; Galligos Ex. vs. Attorney Gen., 3 Leigh, 450; Wheeler vs. Smith, 9 How. U. S. Rep., 55. In the declaration of uses certainty was required, and that especially in three things : in the persons to whom, in the lands, &c. of which, and in the estates by which the uses were declared, and if there was a want of certainty in either of these, the declaration was not good, (2 Sheppard's Touchstone, 509, id., 520; 1 Sand, on Uses, 238), and a trust is now merely what a use was before the statute of uses. Tif. & B. on Trusts, 3; 1 Cruise's Digest, title 12, chap. 1, sec. 2; 21 Winer's Abridgement Trust, 493 ; id., 494, 503. Our statutory provision on this subject removes any doubt that might otherwise be supposed to exist. In the creation of a trust of this character it is required that the trust shall be “ fully expressed and clearly defined on the face of the instrument creating it.” It has been found that secret and hidden trusts embarrass title, multiply litigation and are the common instruments of fraud, [339] being a cover for secret and fraudulent conveyances of property, made with a view to hinder'and defraud creditors. Irvin vs. Marshall et al., 20 How., U. S. Rep.; 10 Bacon's Abridgement, — Uses and Trusts — A, 113; 22 Viner's Abridgment, 179— Use— A, 3. Hence the necessity and reason of our law on this subject. The evils that the statute was intended to prevent, cannot .-be avoided, unless the trust deed show certainly on its face what are the objects and who are the beneficiaries of the trust property. To a person whose duty or interest it might be to inquire, this trust deed gives no light on any of these points. The German Land Association was not by the law invested with any legal existence, and the trust deed gives no intimation as to who the persons were associated under that name. The deed was therefore void. The plaintiff’s counsel insist that our statute law as to uses and trusts is inapplicable in this case, and to substantiate this position cite Irvine vs. Marshall et al. Neither the decision nor the reasoning in that case is applicable in this. The question before the Court in that case was as to the rights and liabilities of parties purchasing lands from the United States — the Court deciding that a State or Territory could not control the acquisition or transmission of such property, or annex any conditions to the mode of such transmission, or-limit or restrict the liability of agents or the rights'of principals in the making of such purchases. The Court base their decision on the ground that such modifications or restraints would operate to restrict the sale of public lands, and thereby injure the revenue of the government. In this case such question is not involved directly or indirectly. Here the title has passed from the government to defendant. The plaintiff does not question that title. He bases his right and claim exclusively on his contract with defendant — a contract not concerning the purchase of land from the government, but concerning the transmission of land by one citizen to another, and which admits that the title has legally passed out of the United States and vested in defendant. This contract is therefore governed by the .laws of our State. Wilcox vs. Jackson, 13 Peters, 517. [340] It is true that grants for charitable and pious uses have by courts of equity been sustained when made by trustees for the benefit of ijnincorporated institutions or associations, and when the cestui que trusts have been uncertain. .The authorities in the United States are by no means harmonious as to the source or extent of the power of the Courts in this class of cases; but it not being claimed that this grant is for charitable or pious uses, it is not necessary for us here to inquire as to the extent of the jurisdiction of courts of equity over charities, or whether it rests in the provisions Of the statute of 43 Elizabeth, or exists where that statute is not in force. I think that the complaint is insufficient in not showing that the plaintiff is the successor in interest of the said Association, but it not being necessary to decide this point, -the Court has not passed upon it. The order appealed from is affirmed.