Morris tribune. [volume] (Morris, Minn.) 1880-2000, 1901-10-12
Davis, Kellogg& & Severance, of st. Paul, Rem
der a Scholarly Opinion in the
Right of Way Deal
COUNCIL TAKES ACTION
The Councils Attorneys Reach Same Con-
cIusions as Did Attorney John
Lind and Judge EuIand.

The opinion of Davis, Kellogg &
Severance, of st. Paul, on the fright
of way deal" has been received by
Mayor Bevans, and was presented to
the council at a meeting held last
night.
The opinion says that "the village
has rights in the premises which can
and should be- enforced"
The opinion is based upon the
statement of facts which have been
many times repeated in these column
but particularly upon the following
recital,
First, that the railroad company
intended to convey the property to
the village, and with whatever ar
rangement the village saw fit to make
for the managing of the property,
the company was not concerned.
Secondly, the property was con :
veyed by the Improvement Commit
tee to the Investment Go. under GER
tain well defined trusts, whereby the
receipts we're to go to paying the
ordinary expenses, to the investors
and to the village.
The opinion views the matter from
three standpoints, and points out
three remedies.
THE VILLAGE AS THE BENEFICIARY
The presumed lack Of any written
instrument defining the trust for the
benefit of the Village, is serious
fault, though not fatal. Maly cases
are cited to show that the village
may have beneficiary interest IN
the proceeds of the sale of the lots of
the Harris addition, although the
village may claim no interest in the
land itself. This, by the way, is
exactly the reason why the Invest
ment Co. was created.) One case is
cited which is very similar to the
village case. in which a trust in
certain profits was created by oral
agreement. The court held the
trust to be good. Likewise, in the
case against the Morris Investment
Co., the interest of the village lies in
the profits, rather than in the land.
WHAT THE CoMMITTER MAY DO.
The second part of the opinion
deals with what remedy the Improve.
ment Committee as grantors to the
Investment Go. may secure. By the
Improvement Committee is meant not
only the members of that body, but
all who were interested with them in
making that transfer to the Invest
ment Co. Here an equitable princi-
pie is applied, that 1.-THE courts will
not permit trustee to profit by the
mere fact that the trust is unenfor-
sible." In this case, those numerous
persons who conveys the property to
the Investment Co. may call upon
the Investment Co. to preform their
contract in regard to turning over
the profits to the Improvement Com
mittee.
THE TRUST AGREEMENT.
The preceding arguments have
been based upon the suposition that
there was no trust agreement, but
since there was a trust agreement
which many persons can testify to
having signed, and which was left in
the possession of Mr.. Darling, the
counsel think that secondary evidence !
as to the contents Of the agreement
would be admissible. On the
strength of this agreement, action
could be brought by the Village Of
Morris, and all other parties inter-
ested in the disposition of the pro-
perty, including the Improvement
Comnalttee.
if all Of the remedies outlined fail
there is still an action which can be