Southern Grocery Co. v. Harrison

de CRAFFENRIED, J.

— If the facts set up in plea 3, as amended (which the reporter will set out), are true, then a court of law has not the power, even in an action for money had and received, to settle the trust created by the instrument referred to in the plea and thus award the amount to the plaintiff which the plaintiff claims is due him as a cestui que trust under said instrument. Trusts are peculiarly the creatures of equity, and courts of equity are peculiarly the forums which have been created for their administration and settlement. While courts of law, through the equitable action for money had and received, have broadened their jurisdiction and, in very many instances, rendered judgments in cases which were also cognizable in courts of equity, they have never in this state undertaken to* settle between a trustee and his cestui que trust the conflicting equities which must necessarily exist between them under instruments creating express trusts and under circumstances shown by this plea. The general rule relative to express trusts is that “the cestui que trust has no remedy except by subpoena in chancery.”— Perry on Trusts (4th Ed.) § 17.

“In cases of strict trusts the jurisdiction of equity is exclusive. But in cases of quasi trusts, such as bailments, deposits and implied contracts arising from money had and received, a court of law has jurisdiction, and equity will ordinarily not take cognizance of the case.”' — 22 Ency. PI. Pr. p. 12, subd. “b.”

In the instant case Morris Mayer was the trustee of an express trust. The appellee, defendant in the court below, was one of his cestui que trusts, and the only court in this state having jurisdiction of this trust is a court of equity. A court of equity alone has the power to adjust and determine the equities of the parties named in the instrument creating the trust in the fund described in the plea. Plea 3, as amended, therefore set up no defense to the cause of action set out in the complaint, and the trial court erred in overruling the plaintiff’s demurrer to the plea. There are other questions presented by the record, but we deem it unnecessary to discuss them.

Reversed and remanded.

Dowdell, C. J., and Andeeson and Mayfield, JJ,, concur.