Adam L. Bingaman et al. vs. William Robertson, trustee, &c., 25 Miss. 390

Mr. Justice Yerger delivered the opinion of the court. The defendant in error commenced suit in the circuit court of Adams county against Bingaman and Surget on a note made .by them to the Commercial Bank of Natchez. The charter of that bank was declared forfeited at the June term, 1845, of the circuit court of Adams county, by virtue of proceedings had in accordance with the provisions of the act of July 26, 1843. Hutch. Code, 329. And Robertson was appointed a trustee to sue for and colject the debts of the bank, and thus derived his title to the note sued on. The suit was begun on the 1st day of October, 1847.

The defendants pleaded in bar of the suit, that, at the November term, 1846, of the circuit court of Adams county, on motion of the district attorney, it “was adjudged that the plaintiff, as trustee, should sell to the highest bidder for cash all the property and evidences of debt of said bank specified and set forth in a

schedule by him rendered to said court, at the places and in the manner and form according to said schedule, and according to the statute in such case made and provided; which judgment remains in full force and unreversed.” The question thus presented by the plea, is substantially the same decided by this court at the January term, 1847, in the case of the Commercial Bank of Natchez v. Chambers et al., 8 S. & M. 1.

In that case it was held, that upon the judgment of forfeiture, rendered against the bank in June, 1845, and the appointment of Robertson, trustee, the legal title of all the property that had belonged to the bank, was vested in Robertson, for the use of the creditors, and that the act of February, 1846, by virtue of which the trustee was ordered to sell the debts due to the bank, was unconstitutional and void, and that the judgment of the court ordering the sale was, therefore, a nullity.

In the present case, a most elaborate and ingenious argument has been made, in which counsel have attempted to show, that although the act of the legislature of 1846, by which the court was empowered to make the order of sale, is unconstitutional, yet the judgment of sale being made by a court of competent jurisdiction, which thereby adjudicated the law to be constitutional* is only erroneous and not void, and cannot be attacked in a collateral suit, but must be enforced until vacated or set aside in a direct proceeding.

The conclusion to which we have come, renders it unnecessary that we should decide the very interesting question thus made by the counsel for the j)laintiffs in error. According to the previous adjudications of-this court, made after the most elaborate argument, and upon careful investigation, the legal title to all the property, including the choses in action, which belonged to the Commercial Bank of Natchez, was declared to be vested in Robertson, the trustee, by operation of law, and the proceedings of the court consequent upon the declaration of the forfeiture of the charter of the bank.

By virtue of this legal title, and according to the provisions of the act of July 26, 1843, Robertson was authorized and empowered to sue for and collect the note in controversy. Although the order, or judgment of sale, pleaded by the defendants, be not void, but only voidable, it does not, in our opinion, divest or take away the right or title of Robertson, previously vested. By the order commanding him to sell, he is not enjoined from bringing suit upon the note, nor do we think that the order to sell can be construed into a prohibition to sue.

In this respect, he stands in a position strictly analogous to that of an executor or administrator, who has been directed by the order of the probate court to sell the personal property belonging to the estate upon which he has administered. As the legal title to the property is vested in him by operation of law, the mere order to sell does not divest it; arid until he makes sale thereof, he may maintain any action in reference to the property, after the order of sale, that he could.have maintained before. Entertaining these views, we are of opinion, that the judgment of the court below should be affirmed.

We would remark in relation to the third plea, that we consider the appointment of the trustee by the court, the only execution of the judgment of forfeiture ever contemplated by the law. Judgment affirmed.