TRUST-TRUSTEE- continued. TRUST TRUSTEE — continued. wards the trustee buys the property from the purchaser at the trust sale affords no evidence of fraud, the price paid by the trustee being a fair price, and his purchase not having been contemplated at the time of the original sale. Stephen v. Beall, 22 Wal. 329. que trust, the mortgage debt remaining unpaid, and B. refusing to advance money to pay it, a foreclosure and sale were had, and suit having been brought against B., in which it was sought to charge him with waste in permitting the foreclosure, and to compel a reconveyance of the property conveyed, it was held that B. was not a mortgagee, but a 17. Purchases by trustee from cestui trustee, that he had been guilty of no default in considered. Brooks v. Martin, 2 Wal. 70. the premises, and that, the property conveyed 18. What constitutes Breach of Trust.] being worth less than the amount of his advances, A trustee with power to sell and reinvest whena sale would not be ordered, although requested ever in his opinion the money may be laid out by A. Flagg v. Walker, 113 U. S. 659. advantageously, must exercise such power fairly and honestly; and the sale will be void if he appear to have been influenced by private and selfish interests, and be for an inadequate price. Wormley v. Wormley, 8 Wheat. 421. 9. It was held, however, that A. should have six months for redemption by paying to B. the amount of his advances, B. to hold the property discharged from trusts in case redemption should not be had. Ib. 10. In the absence of authority, a trustee cannot charge the trust estate; and clearly he cannot, where the instrument creating the trust makes him a trustee merely of the naked legal title, and, by its provisions, effectually excludes the power to charge. Hewitt v. Phelps, 105 U. S. 393. 19. A trustee of property for a husband and wife, for life, remainder to their children, with power, on consent of the tenants for life, to sell and reinvest, sold the property and reinvested the proceeds, with consent of the tenants, on promise of a mortgage, in real estate purchased in his own name and for his own use, but executed no mortgage. It was held that there was a breach of Caldwell v. Taggart, 4 Pet. 190. trust. 11. Where, on the sale of property, a bond is given secured by a deed of trust, the vendor's at- 20. One who denies that he is a trustee should torney being made trustee, with no duties save be removed and a new trustee appointed, if the those of receiving the money and executing a re-intervention of a trustee continues necessary. lease, he will not be removed from his office be- Irvine v. Dunham, 111 U. S. 327. cause, in a controversy with his client concerning fees, a personal ill-feeling has been engendered, especially where a co-trustee is associated with him. [WAITE, C. J., and HUNT and HARLAN, JJ., dissenting.] McPherson v. Cox, 96 U. S. 404. 12. Execution of Trust · Trustee may not claim adversely.] A trustee cannot claim the trust property adversely to those for whom he acquired and for whom he holds it. Union Pacific Railroad Co. v. Durant, 95 U. S. 576. 13. One who has been ordered by the probate court to pay over to himself as trustee money held by himself as executor, and who files in court his receipt as trustee, and on the strength thereof procures his discharge as executor, cannot be heard to deny that the money came to his hands as trustee. Cavender v. Cavender, 114 U. S. 464. 14. Execution of Trust Trustee may not acquire Trust Property.] A trustee cannot lawfully acquire the trust property, either by purchase or by exchange. Wormley v. Wormley, 8 Wheat. 421. 21. A neglect to invest trust funds constitutes a breach of trust for which a trustee may be removed, where the will creating the trust requires an investment. Cavender v. Cavender, 114 U. S. 464. 22. Accounting For what Trustee is allowed.] In this country, trustees are, in general, entitled to compensation, to be computed as a percentage on the amount of the estate; but the claim therefor may be forfeited by fraud or negligence. Barney v. Saunders, 16 How. 535. 23. The holder of a fund who is by the law a trustee is bound to defend the title, and expenses therein incurred may be charged upon the fund; and if he defend, it makes no difference in the matter of the expenses that he does so in the belief that he is the lawful owner by assignment from the cestui que trust. Williams v. Gibbes, 20 How. 535. 24. The trustee of a fund may retain thereof enough to reimburse expenses incurred, and to give a fair compensation for personal exertions made in the prosecution of the claim from which the fund was derived. Ib. 15. A sale of land belonging to infant tenants in common, made under order of court for a partition, not set aside for constructive fraud on the 25. A trust estate must bear the necessary exground of a purchase by persons standing in fidu-penses of its administration. Trustees v. Greenciary relations, where it appeared that those persons did not become interested until after such relations had ceased. Kearney v. Taylor, 15 How. 494. 16. Where a sale of trust property is fairly made for an adequate price, and confirmed after opposition, the mere fact that thirteen years after ough, 105 U. S. 527. 26. Accounting For what Trustee is chargeable.] Trustees under a duty to invest on good security, who suffer money to lie on deposit at a banker's, payable on demand with interest, longer than may be reasonably necessary to obtain a proper investment, must bear any loss that may arise from a failure of the banker. Barney v. Saunders, 16 How. 535. 27. Aliter, if the deposit be of money from current income recently made, and otherwise not imprudent. Ib. 28. If the trustee receive usurious interest, he must account therefor to his cestui que trust. Ib. 29. The estate of a husband who had maltreated his wife, and obtained from her the income from her separate property under a promise to invest it for her, but who did not invest it, was charged in equity with interest compounded aunually through a long term of years, and allowed nothing for commissions. Walker v. Walker, 9 Wal. 743. 30. A trustee residing within the confederacy during the rebellion, who kept no separate accounts of the trust fund, but invested it in his own name, cannot charge it with losses sustained from payments made to him in confederate money. Mitchell v. Moore, 95 U. S. 587. 31. Accounting-Interest.] Although compound interest may be charged against a trus tee to invest, for gross neglect or for misuse of the funds, simple interest only is, in general, imposed for mere neglect to invest. Barney v. Saunders, 16 How. 535. 32. And where the amounts received are not large, nor such as could be easily invested at any time, yearly rests only will be made. Ib. 33. A trustee is liable for more money than he receives, with interest, only in case of very supine negligence or wilful default. Taylor v. Benham, 5 How. 233. 34. Discharge of Trustee - Presumption and Effect.] A state statute authorizing the chancellor to discharge trustees named in a will (the trust being to hold to the use of a person named for life, etc.), and to appoint others in their place, is valid, where it is enacted at the request of the original trustees, in such case no contract being violated. Williamson v. Suydam, 6 Wal. 723. 35. The trustees having been discharged pursuant to the statute, the legislature, by a supplemental act, may grant power to appoint, as trustee, the devisee of the life estate in place of the trustees discharged, and to authorize him to execute the trust. lb. 36. The lapse of forty years and the death of all the original parties, held sufficient to raise a presumption of the discharge and extinguishment of a trust proved once to have existed, by strong circumstantial evidence. Prevost v. Gratz, 6 Wheat. 481. 37. Where land has been conveyed upon trusts which fail, so that it has become the duty of the trustee to reconvey, the presumption arises that he has done so; and if, on facts making his duty in the premises clear, the court below finds, not as a fact, but as a conclusion of law, that he has not reconveyed, the appellate court will reverse TRUST TRUSTEE- continued. the judgment. French v. Edwards, 21 Wal. 147. 38. Although it is to be presumed that a trustee has reconveyed to his grantors where the conditions on which, by their deed to him, the trust was to be executed have become impossible, the presumption is rebuttable. Lincoln v. French, 105 U. S. 614. 39. After the trusts declared by a will are performed, the trustee's deed of the trust property, not made in pursuance of any power conferred or duty imposed on him as trustee, conveys no title. Young v. Bradley, 101 U. S. 782. Bank-Trustee to wind up. See BANK, 10. TUGS AND TOWAGE Duties and Liabilities | TUGS AND TOWAGE — continued. of Tugs and Tug-owners.] A steam-tug is bound that relation would imply, it does have control to to the exercise of such caution and skill as prudent navigators usually employ in similar services, and is responsible for injury to her tow caused by the want thereof. The Webb, 14 Wal. 406. the extent necessary to enable it to fulfil its contract, and is, therefore, bound to exercise such care and diligence as a skilful performance of the stipulated service requires. Eastern Transportation Line v. Hope, 95 U. S. 297. 5. The owners of a steamer undertaking to tow vessels are responsible for an accident resulting from a want of proper knowledge on the part of the master of the difficulties of naviga 2. Although, in general, damage to the tow does not raise a presumption of want of care and skill on the part of the tug, it may be otherwise in certain cases; as, for instance, where the tug goes three miles out of her proper track in run-tion in the river in which the steamer plies, such, ning a well-known straight course of nine miles, although after she starts thereon a thick fog comes on, and although there are various known lb. cross-currents. 3. A steam-tug which engages to tow a vessel into port, although not a common carrier nor an insurer, is bound to exercise reasonable care and skill, and is responsible for the want thereof; the port being her home port, she is bound to know the channel, how to reach it, and whether, in the state of the wind and water, it is safe and proper to attempt to euter with a tow. The Margaret, 94 U. S. 494. 4. Although a transportation company, engaged in towing a barge from one point to another, does not occupy the position of a common carrier. nor have that exclusive control of the barge which for instance, as the distance from one to another of two piers between which he attempts to pass, ignorance of the currents, of whether, in a certain state of the river, that which at low water would be an obstruction can be passed over, etc. The Lady Pike, 21 Wal. 1. 6. A river steamboat approaching a bridge with piers, when the wind is high and she cannot pass without danger, should lie by until the wind subsides. If, instead, she tries to pass, and a barge in her tow strikes a pier and sinks, the owners of the steamboat cannot contend that the loss was due to "the dangers of navigation." The Mohler, 21 Wal. 230. Collision in general. UNITED STATES BANKRUPTCY - continued. | UNITED STATES provide, and such intent is not to be presumed. The rights and remedies of the sovereign are not to be devested by any general words. United States v. Herron, 20 Wal. 251. UNITED STATES- CLAIMS ·Assignment confers no Rights, but Assignor may not set up Invalidity-Payment of Part of Claim assigned creates no Estoppel -Parties to Assignment concluded by Legislative Recognition - Payment to Assignee's Attorney, when good.] One cannot acquire as against the United States the rights of another in a contract with the United States, as, for instance, the right to compensation for carrying the mails, by a mortgage from the contractor and a foreclosure by judicial sale. Such a transfer is directly within the prohibition of §§ 3477, 3737, Rev. Sts., relating to assignments of claims against the United States. & Duluth Railroad Co. v. United States, 112 U. S. 733. St. Paul 2. If a government contract for supplies, containing a clause forbidding subletting or assigning, be abandoned by the contractor and taken up by his sureties, with the consent of the government agent, and by them turned over to one who agrees to furnish the supplies and pay them a percentage of the money received, that person does not thereby become interested in the original contract, so that if the government, desiring to abandon it, propose to settle equitably with all persons so interested, he will be entitled to share in the settlement. Kellogg v. United States, 7 Wal. 361. 3. If the law prohibiting the assignment of claims against the United States applies to the case of an assignment of the claim of a county for indemnity for swamp lands sold by the United States, a county which has sold and assigned such a claim cannot, after the United States has paid it, invoke the law to avoid its contract of sale or to recover the amount received by its assignee. American Emigrant Co. v. Adams County, 100 U. S. 61. 4. The act of February 26, 1853 (10 Sts. 170), to prevent frauds on the treasury, applies only to cases of voluntary assignment of demands against the government, not to the passing of claims to heirs, or devisees, or assignees in bankruptcy. Erwin v. United States, 97 U. S. 392. 5. An assignment for the benefit of creditors is not within the prohibition of the act, nor does it violate any principle of law or public policy. Goodman v. Niblack, 102 U. S. 556. 6. The United States, by paying part of a claim to an assignee thereof, is not precluded, when sued for the balance, from denying the validity of the assignment. McKnight v. United States, 98 U. S. 179. 7. Where the assignment of a contract with the United States has been recognized by acts of congress, the parties thereto cannot dispute its validity. Goodman v. Niblack, 102 U. S. 556. CLAIMS continued, 8. Notwithstanding the act of July 29, 1846 (9 Sts. 41), which forbids the payment of claims against the government to any one other than the claimant, or his executor or administrator, or an attorney in fact under a power executed after allowance of the claim, and the act of 1853, payment to such an attorney may be good against the claimant, the power being unrevoked at the time of payment, although executed before the claim was allowed. Bailey v. United States, 109 U. S. 432. Contracts for Army Supplies. See WAR DEPARTMENT. UNITED STATES—IN GENERAL — Supremacy of Federal Power - - Power to provide for Restoration of State Governments Power to acquire Territory and over Territory acquired — War Power-Power to contract.] The federal government, although limited in its powers, is supreme within its sphere of action; and its laws, when pursuant to the constitution, are the su preme law of the land. McCulloch v. Maryland, 4 Wheat. 316. 2. The federal sovereignty within a state is distinct from that of the state itself, and each is independent within its sphere of action, although both exist and are exercised within the same territorial limits. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wal. 397. 3. And neither can intrude within the jurisdiction of the other, or interfere with its action; but where a conflict arises between their respective enactments, or in the enforcement of their respective authorities, those of the federal gov ernment must have supremacy until the validity of such enactments or authorities is determined by the federal tribunals. Tarble's Case, 13 Wal. 397. 4. The authority of the general government to provide for the restoration of state governments, when subverted and overthrown, is derived from its obligation to guarantee to every state a republican form of government. Texas v. White, 7 Wal. 700. 5. The power is primarily a legislative power, and resides in congress, although the president may institute temporary government in an insurgent district, or take provisional measures for the restoration of a loyal government therein. Ib. 6. In its exercise a discretion in the choice of means is necessarily allowable, it being therein UNITED STATES IN GENERAL- continued. | UNITED STATES IN GENERAL essential only that the means chosen be necessary and proper for its execution, and not in contravention of the constitution. Ib. 7. The United States has power to acquire territory either by conquest or by treaty. American Insurance Co. v. Canter, 1 Pet. 511. 8. When the United States acquires new territory by treaty it does not succeed to the prerogative rights of the former sovereign, but takes subject to its own institutions and laws. Pollard v. Hagan, 3 How. 212. 9. The constitution does not expressly confer the power to acquire territory to be governed as a colony, but it confers power to admit states, and under that power territory may be acquired which is intended to be admitted as a state, and which, from the necessity of the case, may be governed by congress until fitted to be so admitted. [MCLEAN and CURTIS, JJ., dissenting.] Scott v. Sandford [Dred Scott Case], 19 How. 393. 10. The constitutional powers of the federal government do not enable the government to have or exercise that police control over public places within the state of Louisiana which belonged to the crown either of France or of Spain; and the treaty of cession could not enlarge that power. New Orleans v. United States, 10 Pet. 662. 11. The United States may take the legal title to land as security for a debt, notwithstanding the act of May 1, 1820, § 7 (3 Sts. 568), declaring that no land shall be purchased on account of the United States except under a law authorizing such purchase, and although not specially authorized by any particular statute. Neilson v. Lagow, 12 How. 98. 12. The war power of the government, considered. Miller v. United States, 11 Wal. 268; Tyler v. Defrees, Id. 331. 13. The United States may enter into a contract not prohibited by law, and appropriate to the proper exercise of its powers. United States v. Tingey, 5 Pet. 115; United States v. Bradley, 10 Pet. 343; United States v. Linn, 15 Pet. 290. 14. The maxim that the king can do no wrong has no application to the United States or to any of its officers. Langford v. United States, 101 U. S. 341. Agencies not Subject to State Taxation. See TAX-POWER, 62 et seq. Allowance by Commissioner of Internal Revenue of Claim for Excess paid by Brewer, etc., when conclusive on the Government. See INTERNAL REVENUE REMEDIES Bound as a Creditor by Exemption of Homestead. See HOMESTEAD, 4. Captures-When condemned to Government. See CAPTURE-CAPTOR'S RIGHTS, ETC., 4-6. continued. Compensation to Officer Compensation for Confiscation of Property of Persons in Rebellion - Power. |