Shipp v. New South Building & Loan Ass'n

Whitfield, C. J., delivered the opinion of the court. The only question needing consideration is this: Wasthere any substitution of one trustee for another ? It is conceded by counsel for the appellee that there was no record of the substitution of a trustee, as required by the act of March, 1896, laws of 1896, p. 105. The language of the trust instrument in the granting part is as follows: “said party of the first part hereby conveys and warrants unto the said Jules A. Blanc, party of the second part, as trustee, and to his successors as trustee, the following described real estate,” etc. At the close of the instrument this clause occurs: “The said Jules A. Blanc, party of the second part, is the treasurer of the said New South Building & Loan Association, and he shall be and remain trustee under the provisions of this deed of trust, and the title’ shall be vested in him only so long as he may be such treasurer. And whenever any other person shall become the treasurer of said association, such person shall thereupon, ipso facto, become the trustee herein, with the title of the said property herein described, for the purpose of the trust herein declared, fully vested in him, without any writing, deed, conveyance, formal, or other appointment, with all the powers, duties, and privileges herein granted.” Jules A. Blanc was treasurer when the deed [23] was executed; afterwards, on the 18th of January, 1898, Henry Grinder was elected treasurer by a resolution of the board of directors of the appellee corporation. The appellee did not have this resolution recorded in any way, it was merely spread upon the minutes of the corporation; nor did the appellee, in any way, make any record of the substitution of the trustee. The appellee’s counsel earnestly insists that the effect of the clause in the trust deed is to convey the legal title not to Blanc as an individual, but to the treasurer of the corporation, or whatever person 'might be treasurer at any time; and that an election as treasurer, ipso facto, made such newly-elected treasurer, trustee. Counsel for the appellant insists that the title was vested in Jules A. Blanc, as trustee, not as treasurer, in him as an individual, not as an officer. We do not think if necessary to do more than say this: that if it were conceded that the legal title was vested in the treasurer of the corporation, in so many words, each newly-elected treasurer to become, ipso facto, also trustee, it is none the less true that each change in treasurer is also a change or substitution in the person who is to become trustee. Manifestly, every new treasurer is a new person, and necessarily there is a change or a substitution in the trusteeship in every such change in the treasurer. One of the objects of the statute, as we have held, is to enable the intending purchaser to trace the title on the face of the record; this is a very wise object,-but it would be wholly defeated as to foreign corporations if a foreign corporation could by a mere resolution spread only on its minutes, inaccessible to the outside public, substitute a new trustee. How could an intending purchaser know the name of the new trustee through whom the title is to come ? Is he to be at the expense of traveling five hundred or a thousand miles to read the resolution, depending, then, upon the courtesy of the corporation as to whether it would be shown or not ? It is the purpose of the statute, plainly, that the name of every substituted trustee shall appear upon the face of the record. It is a very wholesome regulation,- and one easy to [24] comply with, and if the corporation, through ignorance of the law, has suffered loss, that is merely one more of many instances in which the failure to know the law entails loss. We are inclined to the opinion that the effect of the language in the instrument is to vest the title in Blanc, not as an officer, but as an individual, and each succeeding treasurer as an individual, the title thus being vested not in the man as an officer, but in whatever person, as an individual happens to be treasurer. We think the case of Commissioners v. Walker, 6 How. (Miss.), 185, so holds, Judge Sharkey there saying: “The trust was not confided to the president and cashier as a part of their official duty, but it was so declared for the purpose of identifying the persons who should execute the trust; and no reason can be perceived why the state might not, with equal propriety, appoint one of its officers as trustee. To all these offices succession was an incident, and to the persons who should fill them for the time being the execution of the trust was confided, with a view to insure the execution, as it was not likely that anything more than a temporary vacancy would occur. It was a trust confided to persons who should fill certain offices, not as officers, but as individuals, and as it was contemplated that the offices should be always filled, it was the more certain that the trust would be executed.” Without reference, however, to this proposition, we think there can be no doubt that even if the position of counsel for the appellee be correct, to wit: that the title was so vested in whoever was treasurer from time to time, there is nevertheless -a change in the trustee or a substitution of a new trustee every time a new person is made treasurer. There is much force in the suggestion of counsel for appellant that if a foreign corporation could be permitted to evade this statute by the election of treasurer by mere resolution spread upon its minutes, in pursuance of a provision in the trust deed, and such election of treasurer, ipso facto, made the treasurer trustee, then a private person might provide in a trust deed that whenever he appointed [25] an attorney or agent, said attorney or agent should become trustee, etc.; and thus there would be, in the case of a private person, no record of the substitution, and the statute would become a dead letter. Manifestly, there is-a change in the trustee, there is a substitution of a new trustee, with every change in the person who becomes treasurer, and it was the very purpose of the statute that there should be record of such substitution, as of all other substitutions, of trustees. We reverse this case with the greatest reluctance, on account of the manifest fraud which has been perpetrated upon the association. But the trouble at last goes back to the failure of the corporation to comply with the statute in a respect in which compliance was very easy. Reversed and remanded.