Shipton v. Norrid

1 Colo. 404

• Court: Supreme Court of Colorado
• Decided: February 15, 1871
• Status: Published

Opinion

Wells, J.

The court erred in sustaining the demurrer to the plaintiffs’ declaration. If the goods in controversy were the goods of the plaintiffs, and the defendant took them, both which facts are distinctly averred, the plaintiffs may maintain this action, whether their title is an absolute or fiduciary one, or whether, if fiduciary, their cestui que trust is a corporation or a mere voluntary association.

There may exist a trust in chattels as well as in real estate; and if such trust be created for the benefit of a single individual or a corporation, or an association of persons not incorporated, the trustee having the legal estate is, in either case, the proper party plaintiff to an action at law for any injury done to, or in respect to, the chattels which are the subject of the trust. And he need not, in his declaration, set forth how the trust was created or his title accrued, any more than one suing absolutely in his own right. It is sufficient to aver the fact of his property and the injury.

If, upon the trial of this cause, it should appear that the plaintiffs, notwithstanding their trusteeship, had not the property in the goods in controversy, then, indeed, another question will be presented; but, for the present, the property is admitted by the demurrer, and. the declaration is clearly sufficient.

The judgment of the probate court is reversed, and the cause is remanded to that court for further proceedings, in conformity with this opinion.

jReversed.