Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1908-12-07
THE ARMORY HALL CASE.
INJUNCTION CONTINUED AND DEMUR'
RER OvERRULED.

| RER ONERRULEDs
Judge Barley, Of the Corporation
! Court, today rendered the following de
clsioD:
In the Corporation Court OF the city Of
Alexandra. Frank L. S symaker, etc,
captain vs.. Patrick j. Murphy and
Windsor w. Domaine. Ia chancery.
The questions raised here are entirely
upon the demurrers to the bill and
amended bill of complaint. The de.
murrer simply raises the questions of Law
aud admits for the purposes stated ell
facts properly pleaded. The deed from
George Il. Robinson and others (belng
the members of the old Alexandria
Light Infantry who did not enlist In the
Spsnish-Amerieau war to the Alexsn-
dria Light Infantry mo. p lettering to
the company organized Immediately
alter said war; conveyed the interest OF
oil of said parties OF the fret part to the
said party of the second part with the
proyiso that 10 the event that the Alex
audria Light Infantry No. 2 should dis
band or cesss to exist as an organization
the property thereby conveyed should
ra,s to the City Council of Alexandria
to be held by 1t iu trust for the use aud
benefit of the active members of any
new military company that might
thereafter be organized and mustered
| in in said city. The acts of 1884, page
624, section 81, which is the ssme as the
present section $50 of our code, gave
ample power to volunteer companies OF
infantry to own and keep real estate nee
essary for its use and the same to belong
to and be under the control OF the active
members of the company. When the
Alexandria Light IOfautry No. l was
dsbande1 on the 29th Of April, 1899,
the armory property remained the prop
city OF the individual members, who, at
the time of the disbanding, were active
members of said company. The men,
bers of the Alexandria Light Infantry
No. l who enlisted in the United States
service had thereby severed their con-
nection with said infantry and had no
further property rights in the Armory
Hall. The Alexandria Light Infantry
No. 2 was formed after the Spanish
American war. Their right to the use
and occupancy OF the armory was BY
virtue of the terms and conditions Of
said deed, otherwise they we're mere
trespsssers. Further than this, 1t Is
charged in the bill tina! from the date OF
the execution of said deed, January 9th,
1900, The Alexandria Light Infantry
No. 2 held possession OF said armory
under and by virtue of said deed, its
captain claiming title under said deed and
holding possession Of and using the said
srmory by virtue Of its authority, and
upon demurrer this being taken as true,
both of these defendants, who we're after
verbs officers of said company, must be es-
topped from denying the same. Whether
the City Council of Alexandra had
authority to be trustee under said deed Is
immaterisl, as a court OF equity will not
permit q trust to fail for want Of
trustee.
1t Is true that mandatory Injunction,
changing possession of property before
a fDsl hearing is rare and rather an
extraordinary remedy, but there are
cases which not only justify but compel
a court of equity to award such injunc- |
tious. The plaintiffs right 10 the |
properly is equitable and he had right |
to 90 into equity for its protection, II
is extremely doubtful, to say the least,
ii he could have proceeded by an action |
of ejectment, as suggested In the de- |
murrer. One of the exigencies which
makes it necessary for the "cesqui que
trust" to ask the aid of court of equity
Is where there is no trustee authorized to
act, az is claimed in the demurrer. The
protection of the public and its welfare
demanded that this court OF equity
should not wait for the termination OF
long litigation before putting the plain
tiff and the new company in possession
of the property, certainly where
little or no harm could result from Its |
use and occupancy during the tendency I
of said suit The court, therefore, con-
ceives that this was proper case for q |
mandatory Injunction, aud will there |
fore continue the Injunction awarded
until the iral termination of this litigs- |
ton
The defendants have raised by the de-
murrer the point that the deed in ques-
ton was never delivered to the City |
Council Of Alexandra The bill states,
and it must be taken as true on the de-
murrer, tba, it was delivered to Captain |
James E. King, the captain Of the gran
tee alexandra Light Infsntlry No.2).
Being a deed directly to the Alexandria |
Light Infantry No. 2 aud delivered to |
its captain, this was all the delivery
which was necessary, as no question as
to the trust, set forth iD said deed, could
arise until the Alexandria Light Infsn-
try No. 2 should disband or cease 10
exist, as an organization.
The only other question raised by the
demurrer was whether F. L. Slsymaker, |
captain, bad 8 right to institute and
maintsi1 this suit. sm of the opinion |
that section $50 Of the code, referred to
above, gives him ample power and
authority to do 30.
The court, therefore, overrules the
demurrers TO the bill aud amended bill.
LOUIS O. BARLEY, Judge.