Leonard v. Darlington

This case was decided in the January Term, the opinion of the Court being delivered by Mr. Justice Terry, and Mr. Justice Heydenfeldt concurring.

This was an action of ejectment for a lot in San Francisco. The right of the plaintiff to recover, depends on the validity of a certain deed signed by P. A. Morse, Wrn. Hooper and Beverly Q. Sanders, styling themselves, Acting Commissioners of the funded debt of the city of San Francisco, conveying the lot in controversy to the grantor of plaintiff.

By the Act authorizing the funding of the floating debt of the city of San Francisco, passed May 1st, 1851, five persons named in said Act are constituted Commissioners, and power is given to them and [125]their successors, to be appointed as provided in the Act, to receive from the Commissioners of the Sinking Fund, appointed by the Common Council of said city, a conveyance of all the the property of said city, and to sell or lease the property so conveyed, and apply the proceeds to liquidate the debt of said city.

There is no provision of said Act, authorizing a majority, or a less number than the whole of said commissioners, to sell or convey any portion of the property. It is contended by counsel for plaintiff, that the commissioners of the funded debt are public officers, appointed for a public purpose, and though all should meet and consult, the act o the majority is the act of the whole. I do not think this point well taken. The powers conferred on the commissioners were similar in their nature to those of assignees in bankruptcy; they were to receive from the Commissioners of the Sinking Fund a conveyance of certain property, which was to be applied to the payment of the debts then due, and the remainder, if any, after the extinguishment of the debts, was to be re-conveyed to the debtor.

The Act of the Legislature, and the conveyance executed in pursu-anee to its provisions, vested the property in the Jive commissioners trustees, in trust, for the'payment of the debts of the corporation.

In Townsend v. Wilson, 1 Barnwell & Alderson, p. 608, the Court held, “ That when a power of sale was reserved to three trustees and their heirs, and there was power to appoint new trustees, the two surviving trustees could not execute the power.” See also 1 Sugden on Powers 78, 2 B. & A., 405; 2 Sum., 264.