CHAPTER XXIII.

SUBJECTS OF INJUNCTION.-TRUSTS.

§ 1. HAVING treated of the grounds for, and the parties to, the process of injunction, we now proceed to consider the subjects in reference to which this remedy is ordinarily invoked; remarking, however, that its most distinguishing feature, as part of the flexible and remedial system of equity jurisprudence, is its applicability and adaptation to any and all subjects which may happen to give occasion to injuries not susceptible of legal redress.

§ 2. Trusts being a peculiar subject of equity jurisdiction, of course no more frequent occasion arises for the process of injunction, than to regulate the disposition of trust property. Thus equity will enjoin a party holding land in trust from parting with his control over it.' So where cestuis que trust were empowered by the trust deed to change the investment of the trust fund, they were enjoined from making any change in such investment, or interfering with the income or profits, without the sanction of the court on notice to their creditors. So where the trustees of a chapel were proceeding to mortgage it for a small sum without any apparent necessity, the court granted an injunction to the plaintiff, undertaking to abide any order which the court might make as to the payment of the debt proposed to be secured. In the case of Atty. Gen. v. The Mayor, &c., Wood, V. C., said: "You cannot, without previous consent of this court, apply any funds which may be in your hands appropriated by an

. Hun v. Freeman, 1 Ham. 490. 2 North Am. Coal Co. v. Dyett, 7 Paige, 1.

3 Rigall v. Foster, 23 Eng. Law and Eq. 71.

act of Parliament to the given purposes of that act, for the extension of those purposes, although it is purely and bond fide an extension of those purposes, or a more enlarged application of it to those purposes.-Considering this money is trust-money applicable to a specific purpose, you, the trustee, must come to this court." So, A. having conveyed property in trust for the payment of certain judgments which were a lien on such property, B., a bona fide purchaser from the trustees, files a bill against C., an assignee of some of the judgments, for an injunction, charging that the judgmentcreditors had notice of, and assented to the trust, and intended to rely for payment upon the proceeds of the land sold under it. C. answered that he had no personal knowledge of the plaintiff's equity, and denied, upon information, the facts alleged. Held, the answer was not sufficient to dissolve the injunction.2

§ 3. But the court will enjoin a sale by fiduciary vendors only upon strong grounds, and for irreparable injury or a clear breach of trust. Thus the court refused to stay a sale by trustees, although to be made the next day, and although the notice was unusually short, it not being a case of irreparable injury, and the trustees being liable to the cestui for any damages which might result from a breach of trust. And a trustee, having a naked title in land, cannot be restrained from asserting or conveying such title, or compelled to convey it to a purchaser from the cestui, without proof of a written agreement, or joining the cestui in the bill. So, in Maryland, a party holding a lien on land, based on a conveyance to trustees for his security, is not entitled to an injunction to prevent a judgment creditor of the grantor, whose judgment is subordinate to the lien, from enforcing his judgment by the sale of the lands on execution. The execution would operate only on the equitable interest of the judgment debtor, and

123 Eng. Law and Eq. 361. 2 Doub v. Barnes, 4 Gill, 1.

3 Dart on Vend. & P. 38.

4 Pechel v. Fowler, 2 Anstr. 542. 5 Richards v. Richards, 9 Gray, 313.

would leave the prior lien unaffected both at law and in equity. So A. executed a document, attested by two witnesses, giving and granting to B., his wife, a freehold house in which they resided. A. afterwards died intestate, and his heirs at law brought ejectment for the house and premises against B. and obtained a verdict, upon which B. filed this bill. Upon motion to dissolve an injunction, held, the gift was incomplete, the relation of trustee and cestui que trust was not created, and the court would not assist either party. but leave them as it found them, and the injunction was dissolved.2

§ 4. In reference to the peculiar form of trusts termed charities, in the case of Atty.-Gen. v. The Foundling Hospital, Lord Commissioner Eyre said, "he had not a doubt that the court had a jurisdiction over charities, and that where they are founded in charters, or by act of Parliament, and a visitor appointed, or where trustees or governors abused their trust, the court could take notice of such abuse; not in the character of a charity, but as an abuse of a trust; but that where the management of a charity was intrusted to governors or guardians by the charter or act of Parliament, such governors had a right to exercise their discretion; and that, as to opinion, although the court should be of a different one from such governors, it would not set up that opinion against the discretion of the trustees." In conformity with these views the court refused to restrain the governors of the Foundling Hospital from building on the charity estates.3

1 Union, &c. v. Poultney, 8 Gill & J. 324.

Price v. Price, 8 Eng. Law and Eq. 271.

34 Bro. Ch. 121, 165.

CHAPTER XXIV.

TAXES.

§ 1. AN injunction lies against a tax which is illegal, or laid for fraudulent purposes.' (a) Thus after a decision by the Supreme Court, that certain property is exempt from taxation, injunctions may issue to prevent tax assessments, in order to prevent a multiplicity of suits. And though. tax deeds of the land would be void, yet they would be a cloud on the title, and the issuing them may be restrained. So an injunction may be allowed, to stay a sale for taxes on city lots assessed by a city government. Or the collection of a special tax levied without authority of law. Or a sale for taxes by an officer without legal authority." So upon a bill, alleging that the defendant, who was insolvent, claimed certain lands by a deed under an irregular sale of a tax collector; that he was threatening and he and others were preparing for waste and trespass; that the complainants had been disturbed and were likely to be still more seriously in the enjoyment of the land, and deprived of its profits; the deed appearing in form to be valid, held, an injunction should be granted, and the deed cancelled." in Pennsylvania, the county treasurer may be restrained from

So,

Ottawa v. Walker, 21 Ill. 605. 4 Culbertson v. Cincinnati, 16 See Adams v. Castle, 30 Conn. 404. Ohio, 574; Vanover v. Davis, 27 Morris, &c. v. Jersey, &c., 1 Geo. 354.

Beasl. 227.

72.

Burnet v. Cincinnati, 3 Ham.

5 Fremont v. Boling, 11 Cal. 380. Lyon v. Hunt, 11 Ala. 285.

6

(a) In Massachusetts-Gen. Sts. c. 18, s. 79-the court is authorized on petition of ten taxable inhabitants to enjoin the illegal raising of money by a town or city.

selling unseated land for taxes, where the owners have paid the taxes to the supervisors, and they have been returned to the commissioners. So the collection of a road-tax by suit will be enjoined, where the supervisors have given no notice to non-residents, or opportunity to work out their taxes, by themselves or their tenants; notwithstanding the general rule of non-interference where the right is doubtful, or where the party has a remedy at law. So, in the important case of Mott v. The Pennsylvania Railroad,3 the remedy of injunction was sustained, to enforce the constitutional principle, that the legislature has no power to alienate any of the rights of sovereignty, such as that of taxation, so as to bind future legislatures; and to avoid a contract made in pursuance of such a legislative act. The specific ground of equitable interposition was, an act of the legislature by which the defendants, in case they should purchase the Main Line of Public Improvements, should be thereafter exempted from all except certain enumerated kinds of taxes. On the other hand the State of Ohio, by an act incorporating the Ohio University, vested in it two townships of land for the purposes of the institution, and authorized the University to lease the lands, providing also that they should be forever exempt from taxation. The lands having been leased, subsequent act was passed, imposing a tax upon them, and such tax was about to be levied. Held, the tax was contrary to the constitutional provision against the violation of contracts; and, to prevent a multiplicity of suits, the plaintiff might for himself and other lessees maintain a bill for an injunction against the treasurer of the county. So a person owning real estate in the city of New York, and paying taxes on it, may by action against the corporation, on behalf of himself and other tax-paying citizens, enjoin them from expending the money to be raised by taxation, in repairing or paving a street in a manner contrary to an express law,

1 Com. v. Supervisors, &c., 29 Penn. 121.

3 30 Penn. 9.

2 Miller v. Gorman, 38 Penn. 309. 361.

Mattheny v. Golden, 5 Ohio St.