Opinion of the court.

that, if one of the policies was paid, he would pay to the wife of the assignor part of the proceeds thereof, and pay her all he recovered on the other policy. It was held that he could sue alone. Lewis v. Graham,* was a case where an assignment of property had been made by a debtor in trust for certain creditors, and the assignee was empowered to pay them, returning the balance to the assignor; and it was held that the assignee might bring a suit in his own name, without joining the cestui que trusts. In Slocum v. Barry,† which was an action brought by persons appointed to receive subscriptions for the Troy University against one who had sigued a general subscription agreement, it was ruled they were trustees of an express trust, and it was said "no formal or written agreement is necessary to create a trust in money or personal estate. Any declaration, however informal, which evinces the intention of the party with sufficient clearness, will have that effect." A factor, or other mercantile agent, who contracts in his own name in behalf of his principal, is a trustee of an express trust within the meaning of the statute.

These, and other cases which might be cited, show how liberally the term "trustee of an express trust" has been construed in order to preserve, measurably, the common-law rule, that he who has the legal right is the proper plaintiff.

If, now, we turn to the case in hand it will be found not easy to see why, if Wood was not the real party in interest when he sued upon the bond, he was not at least a trustee of an express trust. The assignment of Walker to him, though expressly stated to be for a collateral security, gave him the entire legal interest. It enabled him to employ the entire bond, if necessary, for the payment of the assignor's debt to him. Had the assignment been without reference to the purpose for which it was made, it is not doubted that the assignee would have been the real party in interest, and

+34 Howard's Practice, 320.

* 4 Abbott, 106. Cummins v. Barkalow, 4 Keyes, 514; Reed v. Harris, 7 Robertson, 151; Burbank v. Beach, 15 Barbour, 826; Brown v. Cherry, 38 Howard, 352.

Opinion of the court.

as such entitled to sue without joining the assignor, and this though in fact made as a collateral security. The legal effect of the transfer cannot be different because the purpose of it was expressed. It is to be observed that Walker's assignment was not of part of the bond, making Wood and Walker joint owners, as was the case in Lewando v. Dunham,* where the agreement was that the assignor should have half the judgment. Walker's rights were not concurrent with those of his assignce. They were subordinate. He had nothing to get until Wood's claim was entirely satisfied. By his assignment he substituted Wood in his place to demand and receive payment of the bond, and agreed to look to Wood for what remained after his notes were satisfied. Surely after the assignment he had no right to demand anything from Chew. How then had he any real interest in the bond? He had an interest in what Wood might collect by virtue of the bond, but that is a different thing from an interest in the bond itself. And Wood, by taking the assignment expressly as a collateral security, undertook to account to his assignor for the property assigned. IIe became the holder of the legal right under an express trust to hold the beneficial interest or the money collected primarily for himself, and secondarily for his assignor. If faithless to his trust, if he colluded with the obligor in the bond, he was responsible to his cestui que trust.

If theu, as we think, Wood by the assignment became the trustee of an express trust, neither Walker nor his personal representative was a necessary party to the suit which was brought upon the bond. They were represented by the trustee, and the judgment which he recovered settled finally against them, aud all claiming under them as well as against Wood, the amount recoverable. Such, in our opinion, was the legal effect of the judgment in the State of New York. And the plaintiff in error has a constitutional right to have the same effect given to it in the State of New Jersey. The learned court, therefore, erred in decreeing a foreclosure of

* 1 Hilton, 114.

Blacement of the case.

the mortgage. The complainant's bil should have been dismissed.

DECERE REVERSED, and the cause remitted with directions to proceed

IN ACCORDANCE WITH THIS OPINION.

FRENCH U. EDWARDS ET AL.

1. Statutory requirements intended for the guide of officers in the conduct of business devolved upon them and designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected, are not usually regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But requirements intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, are not directory but mandatory. The power of the officer in such cases is limited by the manner and conditions prescribed for its exercise.

2. The provision of a statute of California, that the sheriff, in selling property upon a judgment recovered by the State against the property for delinquent taxes, shall only sell the smallest quantity of the property which any purchaser will take and pay the judgment and costs, was intended for the protection of the taxpayer, and is mandatory upon the officer and not directory merely.

8. The recitals in a deed of a sheriff as to the manner in which he executed a judgment directing the sale of property are evidence against the grantee and parties claiming under him. Accordingly a deed of this officer reciting a sale of property under a judgment for taxes to the highest bidder, when he was authorized by the statute only to sell the smallest quantity of the property which any one would take and pay the judgment and costs, was held to be void on its face.

4. A bill of exceptions dated during the term at which the trial was had, though some days after the trial, is sufficient if it show that the exceptions were taken at the trial.

ERROR to the Circuit Court of the United States for the District of California.

This was an action for the possession of a tract of land

Statement of the case.

situated in the county of Sacramento, in the State of California, "commencing at the corner of Main and Water Streets of the town of Sutter, at the east bank of the Sacramento River; running thence, in a northerly direction, up and along said river one-half of a mile; thence in an easterly direction one mile; thence southerly, at right angles, onehalf mile; and thence westerly, at right angles, one mile, to the place of beginning, containing three hundred and twenty acres.'

The plaintiff derived his title by deed from a certain R. H. Vance, dated March 1st, 1862. Vance acquired his title through sundry mesne conveyances from Johu A. Sutter, to whom a grant of land, including the premises in controversy, was made in June, 1841, by the then governor of the Department of California. This grant was, in March, 1852, submitted to investigation under the act of Congress of March 3d, 1851, to ascertain and settle private laud claims in California, and was adjudged valid and confirmed by a decree of the Board of Commissioners created under that act, and by the District Court and the Supreme Court of the United States, to which the decision of the board was carried on appeal. A patent of the United States pursuant to the decree followed to the grantee, bearing date in June, 1866. As this patent took effect by relation as of the day when the proceedings for its acquisition were instituted, in March, 1852, all the title and rights, which it conferred to the premises in controversy, enured to the benefit of the plaintiff claiming under the patentee, although the deed to him was executed before the patent was issued.

The defendants asserted title to the premises under a deed executed by the sheriff of Sacramento County upon a sale on a judgment rendered for unpaid taxes assessed on the property for the year 1864, and the whole case turned upon the validity of this tax deed.

By an act of California, passed in 1861, the district attorneys of the several counties of the State are authorized and required to commence actions for the recovery of taxes assessed upon real property and improvements thereon,

Statement of the case.

Such ac

which remain unpaid after a prescribed period. tious are to be brought in the name of the people in the courts having jurisdiction of the amount claimed in the counties where the property is situated, against the parties delinquent, the real property and improvements assessed, and against all owners or claimants of the same, kuown or unknown. The manner in which process issued in such actions shall be served, actually upon the defendants if found, and constructively upon defendants absent from the county, and upon the real property and improvements, is specially prescribed. The answers which shall be allowed therein are also designated, and all acts required between the assessment of the taxes and the commencement of the actions are declared to be directory merely. Personal judg ments are only authorized against defendants, who are actually served with process or who appear in the actions; but judgments can be rendered, upon service of process by posting, against the real estate and improvements for the taxes assessed, severally against each, if they belong to different owners and are separately assessed, and jointly against both if they belong to the same owners.

The act regulating proceedings in civil cases generally in the courts of the State, passed in 1851, and its several amendments, so far as they are not inconsistent with the special provisions of the act of 1861, are made applicable to proceedings under the latter act for the recovery of delinquent taxes, subject to the proviso that the sheriff in selling the property under the judgment "shall only sell the smallest quantity that any purchaser will take and pay the judgment and all costs." By the act of 1851 the sheriff is required to sell property under ordinary judgments to the highest bidder.

A further act of the State, passed in May, 1862, in relation to suits of this character, provides for service of process by publication in a newspaper, as well as by posting, and authorizes the court, in enforcing the lien for taxes, to exer

* Act to provide revenue for the support of the government of the State, approved May 17th, 1861, 39, Statutes of California of 1861, p. 432.