Sansom v. Ayer & Lord Tie Co.

• Decision Date: 27 September 1911
• Citation: 139 S.W. 778,144 Ky. 555
• Parties: SANSOM v. AYER & LORD TIE CO.
• Court: Kentucky Court of Appeals

139 S.W. 778

144 Ky. 555

SANSOM v. AYER & LORD TIE CO.

Court of Appeals of Kentucky.

September 27, 1911

Appeal from Circuit Court, Laurel County.

Action by R. H. Sansom, trustee, against the Ayer & Lord Tie Company. From a judgment dismissing the petition on demurrer plaintiff appeals. Reversed, with directions to overrule demurrer and for further proceedings.

Sam C Hardin, for appellant.

C. C Grassham and H. J. Johnson, for appellee.

SETTLE J.

This action was brought to recover damages for a trespass to realty. A special demurrer was filed to the petition by appellee, upon the ground that it manifested a defect of parties. The demurrer was sustained by the circuit court and, appellant failing to amend, judgment was entered dismissing his petition, and he has appealed.

The only question presented by the record for our decision is: Was the action of the circuit court in sustaining the demurrer error? The petition is styled "R. H. Sansom, Trustee," and neither in the caption nor body thereof is there a cestui que trust named, or a trust expressed. Section 21 of the Civil Code of Practice provides: "A personal representative, guardian, curator, committee of a person of unsound mind, trustee of an express trust, a person with whom, or in whose name a contract is made for the benefit of another, a receiver appointed by a court, the assignee of a bankrupt, or a person expressly authorized by statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted."

We are of opinion that appellant is to be regarded as the trustee of an express trust, in the meaning of the section of the Code supra. The weight of authority seems to be that where an instrument vests title in one as trustee, without disclosing on the face of the instrument the nature of the trust or the name of the cestui que trust, then the word "trustee" is merely descriptive, and the ownership vests in the individual in fee; or, to differently express our meaning, when the instrument creating the trust fails to disclose the beneficiary of the trust, the trustee named takes in fee, and may convey the title without the joinder of the cestui que trust. As the petition in this case does not show that any person other than the appellant owns or has an interest in the lands in controversy, we think the word "trustee," used in connection with his name as plaintiff, should be treated as merely descriptive of the person. If, following the filing of an answer denying his title to the land, the case had proceeded to trial, and the deed or other instrument through which he claims title, upon being introduced in evidence, had disclosed that the title was made to him in trust for another person or persons named therein, it would have been ground for a nonsuit; but if the instrument evidencing his title was simply to him as trustee, without disclosing the cestui que trust, his right...