State, ex rel. Collings, Prosecuting Attorney, v. Beck et al. It is a well settled principle that where a corporation must be formed under a general statute requiring certain acts to be done before it can be considered in being, its existence, if properly called in question, must be proved by showing compliance with the requirements of the statute. But it is sufficient if a substantial compliance be shown. There is a wide distinction between a requirement to sign or subscribe one's own name, and a requirement to set forth the name of another person, or to set forth one's own name, not by way of signing or subscribing, to indicate consent or approval. The statute now in question requires, not that the names be set forth in the body of the articles, but that "the names and places of residence of the subscribers and the amount of stock taken by each shall be subscribed to said articles of association." Under a statute requiring the voting paper in an election of councillor of a borough to be "signed with the name of the burgess voting," it was held by the Court of Queen's Bench that papers signed with the initials for Christian names were not thereby made insufficient. Regina v. Avery, 18 Q. B. 576. One may effectually bind himself by signing his initials to an instrument. Palmer v. Stephens, 1 Den. 471. In Miller v. The Wildcat, etc., Co., 52 Ind. 51, 59, upon an objection that the articles of association of a corporation formed under the amended statute of 1852, here in question, did not show the residence of the subscribers, it was held that the use of the double comma following the name of a subscriber and under the name of a certain county and the name of the State, designated by a heading as a place of residence, sufficiently indicated the place of residence, for the reason that such use of the double comma is sanctioned by common usage and literary authority. And while of various objections made to the articles, none had reference to the names of subscribers, an extract from the articles set out in the report of the case shows that one of the two subscribers whose names are given in the extract, used initial letters alone to indicate State, ex rel. Collings, Prosecuting Attorney, v. Beck et al. his Christian name; and, without any question having been made on this ground, the articles were held sufficient. The indication of Christian names by initials in signing or subscribing names is a common usage. We think the subscribing of the name required by the statute was intended by the Legislature to be in the subscriber's usual way of signing his name, and that the signatures made by the subscribers in this instance should be presumed to be made in such usual way. It is not claimed that there had been any legal consolidation of any of the turnpike companies mentioned in the articles of association of The Crawfordsville and Eastern Turnpike Company, though two of the old companies, it is said, were operating their roads together, for material benefit and convenience, under a name indicating a consolidation. The appellees attempted to organize "for the purposes of purchasing, owning, maintaining, operating and extending" the roads of three distinct turnpike companies. All of the roads run in an easterly direction from Crawfordsville, one of them having a branch running in a northerly direction. As shown by the articles of association, two of them connect with each other at their western termini, while the third does not connect with or intersect either of the others at any point. Referring to the statute above quoted, we think that it would be a construction not supported by the words used or the reasonably inferred intent of the Legislature, to say that they permit the organization of a corporation for the purpose expressed in these articles of association. By the first section of the act of February 28th, 1855, supra, it appears that the Legislature did not regard as already existing the power to form a corporation for the purpose of "purchasing and using a part or section of a road already built, or in process of building;" and by that enactment it conferred such power, but not a more extended one. We are unable to find any statute which we think gives the authority claimed by the appellees. Garrigus v. The State, ex rel. Collings, Prosecuting Attorney, v. Beck et al. Board of Comm'rs, etc., 39 Ind. 66; Green v. Beeson, 31 Ind. 7; Stoddard v. Johnson, 75 Ind. 20; Gray v. Mount, 45 Iowa, 591; Johnson v. The Hudson River R. R. Co., 49 N. Y. 455; Shue v. Highway Commissioner, 41 Mich. 638; People v. Troy House Co., 44 Barb. 625; The New York, etc., Co. v. Fulton Bank, 7 Wend. 412; Arnold v. The City of Cambridge, 106 Mass. 352; Frye v. Chicago, etc., R. R. Co., 73 Ill. 399. It being shown by the first and second paragraphs of the answer, that the appellees are organized for an unauthorized purpose, those paragraphs were insufficient. The fourth paragraph of the answer alleged, in substance, that, in 1879, the State commenced and waged, in the Montgomery Circuit Court, with what result is not stated, a prosecution by information, against one Harrison Flannagan, upon a charge of breaking down a certain toll-gate, alleged in said information to be the property of The Crawfordsville and Eastern Turnpike Company, and that the State recognized the appellees as a corporation. The fifth paragraph alleges a prosecution before a justice of the peace against another person, on a charge of maliciously injuring a toll-house, the property of said company, to which the defendant pleaded guilty; and that he was fined. And it is claimed that, therefore, the State is estopped to deny the existence of the corporation. The appellees have not attempted to offer any authority or any reason in favor of these paragraphs or either of them, and it does not seem necessary to offer any against them. There was no error in sustaining the demurrer to each of these paragraphs. No other questions need be noticed, as we think the judgment should be reversed for error in overruling the demurrer to the first and second paragraphs of the answer. PER CURIAM.-It is therefore ordered by the court, upon the foregoing opinion, that the judgment of the court below be and the same is in all things reversed, at the costs of the appellees, and the cause remanded, with instructions to sustain the demurrer to the first and second paragraphs of the answer. Losey et ux. v. Bond, Trustee, et al. No. 10,381. LOSEY ET UX. v. BOND, TRUSTEE, ET AL. SUPREME COURT.— Appeal.— Parties.- Trust and Trustee.- Mortgage.— E., trustee of an express trust created by mortgage, obtained a judgment of foreclosure, and then died. Afterwards the mortgagors appealed, making a party appellee B., who was named in the mortgage as the successor of E. as trustee in case of the death of the latter. Held, that B. was properly made a party to the appeal. From the Marion Superior Court. J. Hanna, F. Kneffler and J. S. Berryhill, for appellants. T. A. Hendricks, C. Baker, O. B. Hord and A. W. Hendricks, for appellees. WORDEN, C. J.-Robert C. Losey and Emma J., his wife, executed a deed of trust, in the nature of a mortgage, to one Jonathan Edwards, as trustee, to secure the payment to the Equitable Trust Company of a sum of money therein mentioned. Edwards, as such trustee, obtained a decree of foreclosure of the mortgage in the court below. After the judgment of foreclosure was obtained Edwards died. Losey and others have appealed to this court from the judgment of foreclosure, and have made Henry R. Bond an appellee, as trustee succeeding Edwards, deceased. Bond now moves that the appeal be dismissed as to him, on the ground that he is not a proper party to the appeal. It is provided, in the mortgage or deed of trust, "that in case of the death, absence from the United States, inability or refusal to act of the party of the second part" (Edwards), "at any time when his action, under the foregoing powers and trusts may be required, then Henry R. Bond, of," etc., "shall be, and hereby is, appointed and made the successor to said party of the second part in said trusts, with like powers and authority; and the title to the said premises shall thereupon become vested in such successor in trust for the purposes aforesaid." Losey et ux. v. Bond, Trustee, et al. This provision for the succession in the trust in case of the death, etc., of Edwards, was, doubtless, valid. It is said in 1 Perry on Trusts, 3d ed., section 287, that "The person who creates the trust may mold it into whatever form he pleases: he may therefore determine in what manner, in what event, and upon what condition the original trustees may retire and new trustees may be substituted. All this is fully within his power; and he can make any legal provisions which he may think proper for the continuation and succession of trustees during the continuance of the trust." Again, at section 288, the same author observes that "Every well-drawn instrument, creating trusts intended to continue for any considerable time, should contain authority and power for any of the trustees to relinquish the trust, as well as provisions for filling vacancies occasioned by resignation, death, or incapacity. Such provisions save the cost and trouble of constant applications to courts." The action of the trustee is required so long as anything remains to be done, in order to finally close the business of the trust. That business is not closed as long as this appeal is here pending, though the land may have been sold under the judgment rendered below. If the judgment should, for any reason, be reversed, the cause will go back to the court below for further proceedings, in which the action of the succeeding trustee will be required. Besides, the succeeding trustee is a proper party to resist the reversal sought by the appellants; and if the judgment should be affirmed, and if the property was bought in at sheriff's sale on the judgment by Edwards, as such trustee, in his lifetime, the title would, doubtless, vest in Bond, as his successor. Bond, as the successor of Edwards, is a proper appellee, and the motion must be overruled. |