Bixler's Trustee v. Taylor , 3 B. Mon. 362 ( 1843 )

Judge Marshall

delivered the opinion of the Court.

According to the principles settled in the case of Penny vs Davis, Trustee of Pierce, decided at the present term, the deed of trust set up in the original bill must be regarded as effectual to pass the title of the slave, Nice, to the trustee, and also to create the trust therein expressed, to prevent the operation of the statute of frauds upon the subsequent possession of the cestui que trust, Mrs. Bixler, and to protect the interest of her children, also cestui que trusts, in the same deed, against a sale made by Bixler and wife, to one having notice of the trust. The bill filed by Davis, therefore, in stating the facts to which these legal consequences apply, shows that the complainant has a plain and adequate legal remedy for recovering possession of the boy, Kit, who is subject to the trust. And although the alledged apprehension that the defendants may remove the boy out of the State, would furnish sufficient ground for asking a restraining order in aid of the legal remedy, which, however, is not alluded to in the bill, neither that allegation nor the charge of fraud in the manner in which the defendants, G. B. and W. Taylor obtained the boy from Bixler and wife, is sufficient to authorize the Chancellor to take jurisdiction for decreeing the final relief prayed for.

There was no error, therefore, in dismissing the original bill without prejudice. But the Chancellor undoubtedly has jurisdiction on the prayer of the cestui que trusts, the infant children of Mrs. Bixler, to enforce the trust, to change the trustee as they desire, and to compel any others who have obtained possession of' the trust property, with a knowledge of the trust, to surrender it to its proper custody and purposes. And we are clearly of opinion that the cross bill of the infant Bixlers, makes out a proper case for relief on these grounds, which is at least so far supported by the evidence as to show a prima facie right to relief. And although there was a defect in the preparation of the suit on the cross bill, in consequence of no guardian ad litem having been appointed, and no answer having been filed for William Taylor, the infant defendant thereto, yet as the complainants were themselves infants, and their bill had been pending but a short time, and as it may have been supposed that the appointment of the guardian ad litem,, and the answer filed for William Taylor, in the original case, was applicable also to the case on the cross bill — we are of opinion that this defect was not a sufficient ground for dismissing the cross bill even without prejudice, before time for supplying the omission had been allowed.

Cales 4’ Lindsey for Davis and Bixler: Hewitt for Taylor, &c.

Wherefore, the decree dismissing the original bill is affirmed, but the decree dismissing the cross bill is reversed and the cause, on that bill, is remanded for further proceedings, not inconsistent with this opinion.