
    William H. Emmert and others v. James De Long.
    
    July Term, 1873.
    1. Town-Sites: Attorney and Client: Entry of Site. In 1871 the land upon which the city of Independence, an incorporated city of the state of Kansas, was located, was public land of the United States. The mayor of said city, E. E. Wilson, desired to enter the same for the benefit of the occupants thereof under the act of congress of March 2, 1867. Other parties contested his right to enter said land. He employed the plaintiffs as attorneys at law, to assist him in said contest. They performed the service for which he employed them. He never entered said land; but his successor in office, James De Long, did. In an action brought by said plaintiifs against said De Long, it was held that said Mayor Wilson had no power to make such a contract so as to bind the estate as it was after-wards created, or so as to bind his successor in office; that compensation for said services is not a charge or lien on the trust estate vested in Mayor De Long for the benefit of said occupants.
    2. Parties: Trustees and Cestuis Que Trust: Parties Defendant. Where an action is brought against the mayor of a municipal corporation for a demand or claim which, if valid, should be settled or paid by the corporation in its corporate capacity, and such corporation is not joined as a defendant, there is a defect of parties. And where such claim is payable out of a trust fund, all the trustees and cestuis que trust should be joined as defendants.
    8. Town-Sites: Application of Fund: Presumption. Where the occupants of a town-site, on receiving deeds from the officer who made the entry, as prescribed by law, pay to such officer certain money, and authorize him to pay all the expenses of entering the land, etc., it will be presumed, in the absence of anything to the contrary, that said money was intended only for the payment of such claims as were legal debts, charges, liens, or incumbrances upon or against said trust estate, or were legal claims against such officer as the trustee of said occupants.
    *Error from Montgomery district court.
    The case is stated in the opinion.
    
      J. D. McGue and G. J. Peckham, for plaintiffs in error.
    At the date of the employment of plaintiffs, and the rendition of their services, Wilson, then mayor of Independence, was entitled to be declared a trustee, under the act of congress, in relation to town-sites, approved March 2, 1867, and was intrusted with all the powers, .and fully qualified and authorized to perform all the duties necessary under said act to make the same effective; and the provisions of said law have been extended to the Osage lands in Kansas. Plaintiffs’ petition avers that on August 1, 1871, the city of Independence was upon the Osage Diminished Reserve in the state of Kansas, and subject to entry under said town-site laws; that the same was then an incorporated city; that Wilson was mayor thereof; and that said Wilson, by and with the advice and consent of the others of the corporate authorities of said city, had duly applied, at the proper land-office, to enter the lands upon which said city was located. Here, then, we find every condition necessary to constitute the *trust: the mayor of said city, the trustee empowered by said acts to ■execute the trust; the lands so occupied as the site of an incorporated city, the subject of the trust; and the several occupants, the benefi•ciaries. But it is objected that said Wilson, in applying to enter, and in contesting with the adverse claimants, was not a trustee but was merely endeavoring to become a trustee; that he held nothing in trust; that the legal title to the lands had not yet vested in any trustee; and said Wilson’s acts, therefore, did not charge the estate and were binding only upon himself. Can it be reasonably argued that although, as it is expressed in said act of 1867, “it shall be lawful” for said Wilson to enter, yet the expenses necessarily attendant upon, and incident to, such entry, and by means whereof the trust itself was made effective, shall not be chargeable to the trust estate, because the person authorized by law to establish the trust, and execute the same, had not at the time of incurring such expenses, been fully vested with such trust estate ? His right to charge the estate for such expenses becomes legally apparent only at the time of the entry, but it existed, in fact, as fully at the time of incurring the expense as at the time of entry. He was then, in fact, a trustee, and was then entitled to be so declared. And if this be so, what possible extinguishment of this right can be effected by the intervention of a successor pending the final declaration of the trust by entry under the law?
    Having thus considered the relations of said Wilson to the trust, we next affirm that the defendant De Long is the immediate successor in office of said Wilson, and bound by all lawful acts of his predecessor, done in good faith for the maintenance and preservation of the trust estate. De Long cannot assume the trust and succession in part, and reject it in part. He cannot be permitted to accept and avail himself of the labors of his predecessor in maintaining and establishing the trust, and refuse to succeed to the responsibility of satisfying from the trust estate the expenses lawfully incurred by such predecessor. If those expenses were necessary to *guard and preserve the trust estate up to the time when De Long assumed the trust, he takes the same at the status left by Wilson, -•and cannot escape the succession of responsibility for all liabilities properly created by his immediate predecessor.
    Were the services rendered by plaintiffs of such character, and performed under such circumstances, as entitle them to be adjudged necessary and proper for the preservation of the trust estate ? The plaintiffs rendered the services in the capacity of attorneys for the trustee in a suit before the register and receiver of the local land-office, wherein various adverse claimants were seeking to diminish the trust ■estate; and by means of the services the trust was preserved intact, declared and defined, and made effective; they were performed upon the procurement of the trustee, who agreed, for himself and his successor in office, and in behalf of the beneficiaries, to pay therefor a ■certain sum, alleged to be a just sum. But it is objected that although the services were necessary and proper, and Wilson may have a lien upon the trust estate for the just value of such services, yet the plaintiffs have no such lien; that the protection of the trust estate, and establishment of the trust, is a personal duty incumbent upon the trustee alone, and cannot be delegated. The facts stated do not disclose any delegation of trust, but only an employment to perform certain stipulated service, necessarily demanding experience and learning in a particular profession, which there is no presumption that the trustee himself possesses. And we maintain that the services rendered are of such character, and upon such employment, .as entitle them to be made a charge upon the trust estate.
    The question next arises, in whose favor does such charge exist? Must the trustee procuring the services become personally liable therefor, with right to be reimbursed from the trust estate? or does he have the right to create the charge in favor of the plaintiffs, as by the averments of their petition it would seem was intended? We think the last question must be answered in the affirmative. Noyes v. Blakeman, 6 N. Y. 579.
    *If we are correct in our conclusion that De Long holds this fund, or so much thereof as may be necessary, in trust for the payment of plaintiffs’ claim, we maintain that plaintiffs are, in relation thereto, to the extent of said claim, cestuis que trust equally with the occupants aforesaid, the original beneficiaries; that said De Long, in holding and applying the fund, acts in the capacity of trustee for both parties: for the occupants, to so apply the fund as to relieve the lots purchased by them from all just claim, legal or equitable, growing out of the incidents necessary to the acquisition of title; and for the plaintiffs, to reimburse them for their services done and performed in establishing such title; and any attempt upon his part to divert this fund from its proper and legitimate purpose, or to convert it to his own use, is a violation of his trust, to the injury of his cestuis que trust, the plaintiffs, and he should be restrained from committing the injury. Adams, Eq. 408; Merritt v. Thompson, 3 E. D. Smith, Ü96; Moore v. School Trustees, 19 111. 83.
    
      
      Shannon & Cree, for defendants in error.
    Mayor Wilson had no power whatever to make the alleged contract with the plaintiffs. The entire authority of a mayor of an incorporated city respecting the entrance and conveyance of town-sites is found-in 2 Lester’s-Land Laws, pp. 206, 216; and in the Gen. Stat. of Kansas, p. 1073. These acts of legislation are the measure of the power-of the mayor respecting the entrance and conveyance of town-sites. They confer upon him no authority to employ counsel to contest cases,, and make a charge against the occupants. The latter, as the really-interested parties, must do that, if necessary. That public officers, have no powers except such as are expressly conferred by law, is a proposition too plain to need the citation of authorities. The mayor-of a city is a mere executive and ministerial officer, with limited and prescribed functions, and such officers have no implied powers. Hopple v. Brown Tp., 13 Ohio St. 311; National Bank v. Norton, 1 Hill, 572; Salem Bank v. Gloucester Bank, 17 Mass. 1; Foster v. Essex Bank, Id. 479.
    If Mayor Wilson had any such an authority, as is claimed, it. was a special one, and must be averred with full*ness sufficient-to make it clearly apparent. Hallett v. Harrower, 88 Barb-537.
    By reference to the acts of congress, and of the legislature of Kansas, before referred to, it will be noticed that the mayor of an incorporated city acts as a trustee in the conveyance of town-sites. The mayor is the person designated and empowered to enter the town-site, and on the acquisition of the title he becomes a trustee for the occupants; the functions, duties and liabilities of the trust thus being incident to the mayoralty. Beyond simply entering the land, Wilson had no power to do anything as mayor. In the latter capacity he could do nothing to bind his successor. It is not even averred that he was ever a trustee, but, on the contrary, it appears that he never entered the land, and consequently never became a trustee. It is apparent, then, that he could not bind the defendant D.e Long. Plaintiffs in error made the singular assumption that Wilson had the powers and liabilities of a trustee. A simple reference to the elements of a trust estate will show the absurdity of this. Tiff. & B. Trusts, 1.
    The power to enter land conferred upon the mayor by the acts of congress is discretionary, — a mere privilege or naked authority which he may or may not exercise, at his option. Ewing v. Runkle, 20 111. 455.
    The power of Wilson as mayor to make the contract alleged, and to make it a debt against the office, constitutes the substratum of plaintiffs’ action. It failing, the entire action, and the injunction auxiliary thereto, falls to the ground, and it becomes apparent that the court below did not err, neither in dissolving the injunction, nor in sustaining the demurrers filed by defendants in error to plaintiffs’" petition.
    
      Plaintiffs allege a state of facts which, as they claim, constituted De Long a trustee for plaintiffs for the moneys for which they ask judgment. Their claim is that the occupants created the trust, De Long was the trustee, and the plaintiffs the beneficiaries. They have not pointed out any provisions of law which empowered Mayor De Long to enter into any contract in any official capacity whatever, whereby he became *a trustee for the plaintiffs. Neither as mayor nor as trustee did he have a particle of authority to enter into any such an arrangement. Even if Wilson’s alleged contract with plaintiffs was within the scope of his authority, and valid, the subsequent alleged contract whereby De Long became a trustee for them was ultra vires, and void, it being alleged that he entered into it as mayor.
    
    The facts stated in plaintiffs’ petition do not show that De Long was really a trustee for plaintiffs. Three things would be requisite to create the trust claimed: (1) A payment of money by the occupants, with, the certain intent that it should be appropriated in satisfaction of the very claim declared on; (2) its acceptance by De Long for that very purpose; (3) assent by plaintiffs to the arrangement after notice. Only the reception of the money by De Long is averred. Tiernan v. Jackson, 5 Pet. 597; Mandeville v. Welch, 5 Wheat. 277, 286; Williams v. Everett, 14 East, 582. Indefinite expressions are insufficient to create a trust. Perry, Trusts, § 86.
    Neither as mayor nor as trustee, nor in any capacity, official or individual, is it shown that De Long had the power to make assessments upon the occupants to pay any such claim as is alleged by plaintiffs, and no equitable lien could thus arise.
    Plaintiffs claim that the councilmen of the city of Independence were co-trustees with De Long, but that he acted without them. Where a body is a trustee, they must act as such; and if De Long had co-trustees, his acts in making the alleged assessments were void, and there was no equitable lien on the funds in his hands. Tiff. & B. Trusts, 539, 565.
    Plaintiffs claim in their argument that Wilson was a trustee, although he did not enter the lands. If that was so, then he could have made deeds conveying the town-site, and performed all other acts of a trustee in such case. That would be absurd..
    Plaintiffs also claim that they are “cestui que trust equally with the occupants,” and that De Long acts as trustee for both parties. If this be correct, the occupants are cer*tainly necessary parties. Colgrove v. Talmadge, 6 Bosw. 289 ; Bishop v. Houghton, 1 E. D. Smith, 566; Bank of B. N. A. v. Suydam, 6 How. Pr. 379; Johnson v. Snyder, 8 How. Pr. 498; Jenkins v. Brink, 30 Cal. 586; General Mut. Ins.-Co. v. Benson, 5 Duer, 168. The case (Noyes v. Blakeman, supra) cited by plaintiffs, lays down the principle that where a trustee employs agents they are to look to the trustee individually, and have no lien upon the trust funds. So far as the contract set forth shows, Wilson contracted with plaintiffs as mayor; and they looked to him for pay in that capacity. The alleged trust fund, or money held in trust by De Long for the plaintiffs, had no existence when Wilson was mayor, nor does it appear that its creation was then contemplated by any one. Besides, the only trust estate over which the mayor of Independence had any control, or with which the law gave him any connection, was the lands upon which the city is located. The money arising from the assessments levied was subsequent to the mayoralty of Wilson. Plaintiffs can have no lien on any money now in De Long’s hands.
    Plaintiffs also virtually claim that De Long and the occupants are now estopped to deny Wilson’s power to make the alleged contract. An estoppel can never make good an act forbidden by law, nor take away a legal incapacity. Keen v. Coleman, 39 Pa. St. 299; New York & N. H. B. Co. v. Schuyler, 38 Barb. 534.
    Section 238 of our Code has not made any change in the injunction as a mode of equitable relief. Nash, Pr. 437; Hoff. Prov. Bern. 142; Reubens v. Joel, 13 N. Y. 488.
    
      Geo. R. Peck, also for defendants in error.
    The first question to be settled is, what was Wilson’s status at the time he made the contract ? The theory of the plaintiff is that De Long succeeded Wilson in the office of mayor, which is true; and that he also succeeded Wilson as trustee, which is not true. Wilson was never trustee of the land, or of any fund arising from or connected with the land. Now, if Wilson was not a trustee, De Long did not succeed him as trustee. He could not succeed to something which had no existence.
    The plaintiffs claim that the town-site laws of congress impose a duty upon the mayor. They aver that it was in pursuance of the duty imposed upon him by the town-site laws of congress that Wilson employed and retained the plaintiffs. Now, it is perfectly clear that congress has no power to impose a duty upon .a mayor of a city, incorporated under state laws. The mayor of Independence, so far as his official duties as such are concerned, is as independent of congress as is the mayor of London. But the fact is, ■congress has not attempted to impose any duty upon him, but has simply provided that in certain cases “it shall be lawful” for the mayor to enter land for town-site purposes. The force of the language is simply to grant a privilege, but not to impose a duty. Before it can become his duty to enter the land, before any trust in relation thereto can be imposed upon him, the legislature of the state must act. And the legislature of Kansas has acted. Accepting the privilege held out by congress, our legislature has made it the duty of mayors of incorporated cities situated upon public lands, “whenever called upon by any of the occupants of such town, and the money for the entrance of such town-site furnished, to enter such town-site under the act of congress in such ease made and provided.” It will be observed that two things must be done before it becomes his duty to enter. He must be requested, and the money must be furnished. Unless these two things are done, he need not move in the matter. If he goes on and enters the land without these two things being first done, he acts upon his own responsibility, and binds nobody but himself. The petition does not show that any of the occupants of the town-site ever requested Wilson to enter the land, or that they furnished money for that purpose. Then by what authority did he presume to act? Solely upon his own. To enter town-sites is not one of the general, ordinary duties of a mayor. It never is his duty to do so, until “requested.” If he is never requested to enter a town-site, it never becomes his duty to do so. Surely it will not be claimed that he could bind his successor in matters outside of his official duty.
    *The averments of the petition are that Wilson made the contract as mayor, (not trustee) and promised for himself and successors as mayor, (not trustee.) A mayor, if duly authorized, may execute a contract binding upon the city of which he is mayor; but it is loose talk to speak of a mayor binding “his successors” by a contract. A trustee, acting within the scope of his authority, may bind the trust estate, or, if you please, may bind his successor; but the petition does not aver that Wilson made the contract as trustee, or attempted to bind his successors in the trusteeship. But we claim that Wilson never was a trustee. Nothing came into his hands as a trust estate. The land was still unentered when his term of office expired. But if it be admitted that he became a trustee by filing on the land, it by no means follows that he could make a binding contract. Not having been requested to enter the land, all his acts were purely voluntary. If he was a trustee at all, he was like an executor de son tort, responsible for the estate, but incapable of binding it by his contracts. The absurd doctrine of the plaintiffs is that the mayor, upon his own motion, may go to the land-office and file his declaratory statement, and thereby confer upon himself the power to make contracts binding upon an estate not then in existence. It is clear that the plaintiffs have no claim against the trust estate, but must look to Wilson personally.
    
      
       See McTaggart v. Harrison, ante, *62, and notes.
    
   Valentine, J.

The facts of this case, as stated by the plaintiffs in error, are as follows: On or about August 1, 1871, the lands upon which the city of Independence was and still is located were government lands, subject to entry under the town-site laws of congress. Said city was at said date, and ever since has been, an incorporated city of the state of Kansas. At said date one E. E. Wilson, then mayor of said city, acting under authority conferred by said town-site laws, had filed upon and was seeking to enter at the United States local land-office, for the use and *benefit of the occupants thereof, the lands upon which said city is located. Various adverse claimants had also filed upon portions of said lands, and were seeking to enter the same as agricultural claims under the pre-emption laws of congress. The controversy created by such adverse claims was then pending before said land-office, and, to support and maintain the issues on his part, said Wilson, for the use and benefit of said occupants, retained and employed, as attorneys, the plaintiffs in this suit, promising and agreeing, in behalf of said occupants, and for himself and his successors, to pay said plaintiffs a certain stipulated sum per day for each day’s service by them rendered under such employment. Under such employment said plaintiffs duly rendered and performed a certain number of days’ service in said controversy, receiving payment in part therefor from said Wilson, during-his continuance in office, there being a balance remaining due and unpaid. On or about May 10, 1872, said Wilson was succeeded in his office of mayor by James De Long, one of the defendants. At the time of said succession, the proofs in said controversy in said land-office had been taken and submitted, and the case was still pending, awaiting decision. Immediately upon his said succession, said De Long entered upon the continuance of the performance of the trust commenced by his said predecessor in office, and availing himself of the said services of plaintiffs, and by means of the testimony taken and submitted by them entered at said land-office, in accordance with said town-site laws, the lands upon which said city is located, in trust for the use and benefit of the occupants thereof. Said De Long, in his capacity of mayor aforesaid, thereupon proceeded to convey to said .occupants, in severalty, the lots by each occupied, assessing to, demanding of, and receiving from each occupant, as condition precedent to such conveyance, certain moneys, which he (said De Long) claimed were necessary to defray the costs and expenses of the entry of said lands, including the litigation aforesaid, with also costs of conveyance, and had in his hands, at the time of filing of plaintiffs’ petition in the court below, moneys derived *from the sources aforesaid in amount sufficient to pay plaintiffs’ demand and all other proper charges against said fund so collected from said occupants; that said De Long has refused to permit others of the corporate authorities of said city to join with him in the performance of the trust aforesaid, but has in all things, except so far as previously executed by said Wilson, assumed the performance of the entire trust created by said town-site laws, and the premises aforesaid; and by the assumption of said trust, and his acts aforesaid, said De Long has become liable to pay plaintiffs, out of said fund, the balance due them as aforesaid, but that he neglects and refuses so to do, although often requested, and threatens to convert said funds so in his hands to his own use; and plaintiffs aver that said De Long is pecuniarily irresponsible. As against defendant Leonard the averments of said petition are that the moneys so assessed and collected by said De Long were, at the commencement of the action, in said Leonard’s hands for safe keeping. Plaintiffs prayed that said De Long and Leonard be enjoined from disposing of so much of said fund as is necessary to satisfy their demand and costs, and that on final hearing they have judgment against said De Long for the amount found to be due them; that he be adjudged to hold said fund in trust for the payment thereof, and so apply the same.

Upon the commencement of the action the plaintiffs obtained a preliminary injunction in accordance with prayer of the petition. At the December term, 1872, of the district court, the defendants moved to dissolve the preliminary injunction for want of equity in the petition, and the court sustained the motion and dissolved said injunction. At the same term the defendants demurred to the petition, upon grounds, .first, that the facts stated did not constitute a cause of action; and, second, that there was a defect of parties defendant, —and the district court sustained said demurrer, and rendered judgment thereupon against the plaintiffs for costs. Plaintiffs excepted to all foregoing orders "‘and said judgment, and bring their case to this court for review.

The entire authority of the mayor of an incorporated town or city respecting the entrance and conveyance of town-sites may be found in the following statutes of the United States and of this .state. The act of congress for the relief of the inhabitants of cities and towns upon the public lands, approved March 2, 1867, provides as follows :

“That whenever any portion of the public lands of the United States have been or shall be settled upon and occupied as a town-site, and therefore not subject to entry under the agricultural pre-emption laws, it shall be lawful, in case such town shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the judge of the county court for the county in which such town may be situated, to enter at the proper land-office, and at the minimum price, the lands so settled and occupied, in trust for the several use and benefit of the occupants thereof according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.” 14 U. S. St. at Large, 541; 2 Lester, Land Laws, 207.

An act of congress amending the foregoing act, approved June 8, 1868, provides as follows:

“That the inhabitants of any town located on the public land of the United States may avail themselves, if the town authorities elect so to do, of the provisions of the act of March 2, 1867, entitled, ‘An act for the relief of the inhabitants of cities and towns upon the public lands,’ * * * provided, also, that in addition to the minimum price of the lands included in any town-site entered under the provisions of this act and ‘An act for the relief of the inhabitants of cities and towns upon the public lands,’ approved March 2, 1867, there shall be paid by the parties availing themselves of the provisions of said acts all costs of surveying and platting any such town-site, and expenses incident thereto, incurred by the United States, before any patent shall issue therefor.” 15 U. S. St. at Large, 67 ; 2 Lester, Land Laws, 216.

*It is conceded that these two acts are applicable to the Osage lands, and to the town-site of Independence. 16 U. S. St. 557.

The act of the legislature of Kansas, relating to town-sites, approved March 2, 1868, provides as follows;

“Section 1. In all cases in which any of the public land of the United States in the state of Kansas has been or shall hereafter be selected and occupied as a town-site, if the inhabitants of such town shall be at the time incorporated, it shall be the duty of the corporate authorities of such town, or, if not incorporated, then of the probate ju(Jge of the county in which such town-site is situated, whenever called on by any of the occupants of such town, and the money for the entrance of such town-site furnished, to enter such town-site under the act of congress in such case made and provided.

“Sec. 2. When a town-site is entered under the above recited act of congress by the corporate authorities of any incorporated town, deeds shall be made by the mayor or other chief officer of such town for the time being, and said deed or deeds shall be attested by the city clerk or register, and shall be signed by sueh mayor or other chief officer, under the corporate seal of said city, attested by said city clerk or register, if said city shall have a corporate seal; and, if it shall have no seal, under the scrawl or private seal of said mayor or other officer, and attested by the citv clerk or register as aforesaid.” Gen. St. 1868, 1073; Laws of 1870, p. 250.

Under the acts of congress and the laws of this state, the power to enter town-sites where the town is incorporated is conferred upon the corporate authorities of the town or city, as a body, and not upon the mayor alone, or upon any other single officer.

In 1871 and 1872, and indeed in 1873, the mayor and council of a city in this state, (whether such city was a city of the first, second, or third class,) taken together, constituted the corporate authorities of such city. Cities of the first class, Gen. St. 130 § 7;— cities of the second class, Gen. St. 155, § 5; Laws 1871, p. 146, § 8; and Laws 1872, p. 193, § 5; — cities of the third class, Laws 1869, p. 81, § 5, and Laws 1871, p. 122, § 14. *And at that time there was no mayor of any “town or village,” (Gen. St. 1065, § 2; Laws 1871, p. 142, § 96,) nor of any city except cities of the first, second, and third classes. Hence it will be perceived that no mayor in Kansas had any authority alone, in 3871 or 1872, to enter any town-site, nor has he now any such authority. Under the practice of the land department, however, the power of the mayor to enter town-sites will not be questioned by the goverment if it is not questioned elsewhere. 1 Lester, Land Laws, 430. And so, town trustees, where they are the corporate authorities, may enter town-sites. 1 Lester, Land Laws, 443. Also, under the acts of congress, the power of the corporate authorities to enter town-sites, when the town is incorporated, is purely discretionary in every case, — a mere privilege, or naked authority, which they may exercise or not at their option. The acts of congress simply make it lawful for the corporate authorities to enter such town-sites, but do not attempt to enjoin it upon them as a duty so to do. Indeed, congress could not enjoin it upon them as a duty, as such power does not belong to congress. But under our statutes it is made the duty of the corporate authorities to enter such town-sites “whenever called on by any of the occupants of such town, and the money for the entrance of such town-site furnished” to them. But it is never the duty of the mayor alone to enter a town-site; nor is it the duty of the corporate authorities to so enter the same, unless called on by some one or more of said occupants, and the entrance-money furnished to them. In the present case, as no one of said occupants ever called upon the mayor or council, and furnished the entrance-money, it never became the legal duty of either of them, or both together, to enter said town-site. The council, therefore, never attempted to do anything in the premises; and whatever Mayor Wilson and Mayor De Long did was purely voluntary on their part.

The plaintiffs seemed to found their claim principally upon a contract entered into between themselves and Mayor Wilson. They claim that Mayor Wilson employed them *as attorneys at law to assist him in a contest which he had with other parties for the entry of said town-site. Now, as Mayor Wilson had no authority alone to enter said town-site, it would seem that he alone could not employ counsel to assist in the entry; or, rather, it would seem that he alone could not employ counsel and make their fees a charge, a lien, an incumbrance upon the trust estate when it should be created by the entrance of the land. It is not claimed that any express authority is given to the mayor for any such purpose. Indeed, it is not claimed that any express authority is given to the corporate authorities or to any one else for such a purpose. And it certainly will not be claimed that the mayor alone has any such authority by implication. The mayor, in fact, has no authority in the premises alone; and the power of the corporate authorities is simply to enter the land. Beyond that no power is expressly given even to, them. And implied authority is seldom presumed, — never, except to carry out powers expressly granted, and probably never then except to carry out powers which are enjoined upon those who are to exercise them as duties. The services for which the plaintiffs claim judgment were rendered under said contract with Mayor Wilson and during his term of office as mayor. Mayor Wilson never entered said town-site. It was entered by Mayor De Long, after Mayor Wilson’s term of office had expired. Therefore Mayor Wilson never became or was a trustee. No trust estate was ever created during his term-of office to which the plaintiffs’ claim could attach. Mr. Hill says: “A trustee, in the widest meaning of the term, may be defined to be a person in whom some estate, interest, or power in or affecting property of any description is vested for the benefit of another.” Hill, Trusts, 41. And “it may be observed that at law no person can be a trustee, unless he takes a vested legal interest in the trust estate.” Hill, Trusts. 51. We suppose that no one will claim that any estate or interest, either legal or equitable, was ever vested in Mayor Wilson. The whole estate, legal and equitable, re*mained in the government until after Mayor Wilson’s term of office expired. Then how can it be claimed that the plaintiffs’ claim attached to an estate which had not yet been created ? Did it attach to the property while the town-site belonged to the United States ? But even if Mayor Wilson had had authority to employ the plaintiffs, the value of their services would not be a charge or lien upon the trust estate in their favor. They should not look to the trust estate, nor to Mayor Wilson’s successor, for compensation, but to Mayor Wilson himself, personally and alone. Lewin, Trusts, 561. And then, when Mayor Wilson should pay them for their services, the amount thereof would be a charge or lien on the trust estate in his favor, if in favor of any one. Hill, Trusts, 570. But if said contract was valid, and if said services of the plaintiffs created a lien or charge on the trust estate, then there was a defect of parties. All the trustees, and all the cestuis que trust, should have been made parties defendant. Lewin, Trusts and Trustees, 841, 845, 856; Hill, Trusts, 543,545, et seq. If the city council were co-trustees with the mayor, they should have been made parties to the action, and unquestionably the occupants ■of said town-site should have been made parties, as they were the ■cestuis que trust, — the beneficiaries.

The plaintiffs, however, set up another claim against the defendants. They claim that the occupants, by paying certain moneys to Mayor De Long to pay expenses with, created a certain trust in favor of themselves ; that the occupants were the authors of the trust, Mayor De Long the trustee, and themselves the cestuis que trust. Now, if said contract between themselves and Mayor Wilson had been valid and binding as against the trust estate of the occupants, or even against Mayor De Long, then there would be some ground for such a claim; but as said contract is not binding upon the said trust estate, nor against De Long, there is not much ground for such a claim. Under the circumstances of this case, three things are necessary to *create a trust with respect to said moneys in favor of the plaintiffs: First, the payment of the money by the occupants must have been made with the certain intent that it should be appropriated in satisfaction of the very claim declared on by the plaintiffs; second, its acceptance by De Long must have been for that very purpose ; third, an assent must have been given to the arrangement by the plaintiffs, after full notice. Not one of these things has been alleged in the plaintiffs’ petition. It is merely alleged that Mayor De Long made assessments on the several occupants when he made ■deeds to them for the lands they respectively occupied, “claiming ■such assessment and demand to be necessary for the payment of the expenses and costs of said suit before said register and receiver, ■and for the payment of money advanced to enter said lands, and to pay the cost of conveyancing, and that the money received by .him would be so applied,” — without even mentioning that Mayor De Long or the occupants ever knew that the plaintiffs had performed any services for Mayor Wilson, or for any one else, and with-out even mentioning that Mayor De Long or the occupants ever knew, at any time before said money was paid to De Long, that any such claim as the plaintiffs’ had any existence. It cannot be held in such a case that it was intended by the occupants and De Long to create a trust in favor of a party who had no legal or valid claim against the trust estate of the occupants, nor against Mayor De Long, the trustee. It can only be supposed that the occupants paid the money to De Long for the purpose of having him discharge all claims which were legal debts, charges, liens, or incumbrances upon or against the estate which De Long held in trust for them, or which were legal claims against Mayor De Long himself, as their trustee.

The judgment of the court below is affirmed.

(All the justices concurring.)  