Williams v. Jualpa Co. , 3 Alaska 222 ( 1906 )

GUNNISON, District Judge.

Under the pleadings and the evidence, the vital question to be determined is as to the legal capacity of the plaintiff to maintain this suit. That Williams is not the real party in interest is too patent to require further discussion. Even, the plaintiff’s counsel seems to have ceased to seriously urge that contention. Under section 25 of part 4 of the Alaska Code of Civil Procedure, which requires “every action to be prosecuted in the name of the real party in interest,” the suit must be dismissed unless plaintiff has established his right to maintain the bill under the exception- to that statute found in section 27 which is as follows:

“An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.”

It is here to be noted that plaintiff nowhere in the pleadings alleges that he sues otherwise than as the real party in inter-, est. In his testimony, however, he frankly states that he has no interest in the property, but is simply “holding it as trustee for Delaney.” We have already considered the transactions between Williams and Delaney upon which he bases that assertion. Ivet us see whether the facts as disclosed by Judge Williams are sufficient to constitute him “a trustee of an express trust,” and thus enable him to prosecute this suit.

Part 4, § 1046, of the Alaska Code provides:

“No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred or declared otherwise than by operation of law, or by a conveyance or other instrument in writing subscribed by the party creating, transferring or declaring the same, or by his lawful agent under written authority, and executed with such formalities as are required by law.”

Did those acts create any trust within the meaning of that section? Certainly they did not; for plaintiff clearly and definitely stated that there was no conveyance or Instrument in writing. Nor has any such trust or power been created or declared by operation of law.

But that section does not affect certain cases .which are specified in the following section (1047):

“The last section shall not be construed to affect tbe power of a testator in tbe disposition of bis real property by a last will and testament, nor to prevent a trust arising or being extinguished by implication or operation of law, nor to affect tbe power of a court to compel specific performance of an agreement in relation to sueb property.”

The status of the case at bar, however, is such that it does not fall within any of the exceptions. 1

The conclusion of the court is, therefore, that the plaintiff is without capacity, either as an individual or as a trustee, to prosecute this suit under the provisions of the Code, and that the motion of the defendant, made at the conclusion of the trial, to dismiss the bill on those grounds in the case, is therefore unnecessary. 1

Bet a decree be entered in conformity herewith.