
    Connell et al. v. Woodard et al.
    
    The rule that a party cannot he both plaintiff and defendant in the same suit, is confined to natural persons, and does not apply to corporate bodies.
    The trustees of school lands are bodies politic and corporate, and as such may maintain suits against individual members of the board, although the names of defendants appear on the record as plaintiffs.
    The trustees of school lands will be considered as suing as a corporation, although the names which compose the trustees are stated in the pleadings.
    It seems that the right of the trustees to lease the school lands has been too long acquiesced in, to be questioned at this time.
    IN ERROR from the circuit court of the county of Wilkinson.
    This was an action of assumpsit brought by Hugh Connell, Arthur Daniel, William A. Chisholm, Daniel Woodard, and William T. Mayes, trustees of schools and school lands in township number two, range number two, west, in Wilkinson county, state of Mississippi, for the use of Arthur Daniel, president of the board of trustees for schools and school lands in said township, against Daniel Woodard, William T. Mayes, and J. L, Wall, in four promissory notes, made by defendants to plaintiffs in their official capacity, as trustees, &c.
    There were filed pleas of the general issue, and also two special pleas, which went to show that Mayes and Woodard were both plaintiffs and defendants. The plaintiffs demurred specially, and assigned the following causes:
    .1. That the plea is in substance and effecf a demurrer in form of a plea. 2. Said plea sets forth no matter of fact, if true, which is not apparent on plaintiffs narration. 3. Said plea proposes only an issue in law, and tenders it as an issue of fact. 4. Said plea proposes a defence for all of said defendants, Woodard, Mayes and Wall, yet avers no matter of law or fact in defence of said Wall. 5. Said plea is joint as to all defendants, yet offers no sufficient bar to the action, or joint ground of defence.
    The demurrer to the pleas was overruled, and judgment for defendants, and writ of error to this court.
    
      It was insisted on the argument in this court, that the trustees of schools and school lands had no authority under the legislation of Congress to dispose of said lands.
    Boyd, for plaintiffs in error.
    The court below erred in overruling the demurrer to defendants’' pleas.
    1. The pleas were plead jointly by Woodard, Mayes and Wall, and surely they furnished no evidence to the demand against Wall, who was not one of the plaintiffs.
    2. The court has already decided in the case of Carmichael ¶.- The Trustees of School Lands, reported in 3 Howard, 84, that these trustees are a corporation aggregate, or a quasi corporation, so that the legal rules applicable to other corporate bodies, apply to them.
    In this view of the case, there can be no difficulty in deciding that any one of the corporators may be sued by the corpoxation on his notes or obligation properly made to them. The suit might doubtless have been brought in the name of the corporation simply, without setting out the names of the corporators individually. Their individual names are mere surplussage, and the-transaction likens itself to a similar dealing with a bank. A note made by one of the stockholders of a bank to the corporation, certainly is the every day subject of a suit, and it would not be the less liable to be sued, if all the names of the corporators should be set out in it at length.
    The fact that Woodard and Mayes, two of the defendants, were corporators, and so plaintiffs, is no answer to the legal obligation of the note.
    This case would doubtless never have came before the court, had the decision in 3 Howard been known. That decision was made in December, A. D. 1838, and the case now under consideration was submitted for final adjudication, at the November term of the Wilkinson circuit court of the same year, and the judge below delivered his opinion long before the decision of this court was published.
    The death of Woodard has been suggested. As to him, so far as he is a defendant, the suit will abate; and proceed against the others. So far as he is a plaintiff, by being one of the corporators, his death can have no effect on the suit. Indeed, as the case stands, the action being brought in the name of the corporators, for the use of A. Daniel, the death of all of them would not be the subject of any notice. See sec. 48, circuit court act.
    A question, not open for examination in the present state of the pleadings, has been made in the argument at bar. It is said the notes in suit were given in consideration of a lease for ninety-nine years of the sixteenth section as directed in the acts of our legislature, passed in 1833, and that the title to the school sections remaining in the United States, the lease conveyed no right, and the notes were without consideration.
    This question cannot properly arise, but it is too important to be passed without notice.
    By the 12th section of the act of Congress, passed in 1803, (2 Story’s Laws, 899,) the sixteenth section in each township in the Mississippi Territory is to be reserved from sale for the support of schools within the township.
    By the 3d section of the act of-1817, (3 Story’s Laws, 1638,) the Surveyor General, who is appointed for lands south of Tennessee, is directed to make his surveys so as to designate and reserve this sixteenth section. The acts of 1815, 1822, 1826, and all subsequent acts directing or requiring sales of the public domain, provide for a similar reservation. 2 Story’s Laws, 1512, 1846. 3 lb. 2032.
    In the act last referred to, passed in 1826, there is a clear intimation of the kind of interest acquired by the state in virtue of this reservation. Sections one and two, give the authority to the Secretary of the Treasury to select, in fractional townships, a proportionate amount of land in lieu of the sixteenth section, and after this selection, it is to be held for the support of schools, by the same tenure and on the same terms, in each township, as the sixteenth section is or may be held in the state where the township may be. So, in a particular case, the Secretary of the Treasury is compelled to locate another section, where the sixteenth has been covered by an older grant. 2 Story’s Laws, 1028. And the approval of the Secretary vests the right. 2 yol. Pub. Lands, 606, 543, note.
    
      Our legislature has always acted on this view, which has been taken by Congress and officers of the proper departments. See How. & Hutch.- Digest,' p. 125, 127, 129, 130, 131. It is said, however, that a reservation under all these circumstances does not amount to a grant, and that the legal title still remains in the United States. And further, if the grant were otherwise, perfect, still there is no grantee named, in the acts of Congress.
    There is something-more than a mere reservation. The acts of Congress, coupled with the settled policy and history of the' go vernment, and the interpretation of the law officers'.of the proper department, will show that the reservation is in eifect, an absolute renunciation of the right to sell, or otherwise use,-on the part of the government, as between the state and the government. ■ And certainly, an .entire relinquishment of the power of sale, or other disposition or use of a thing, is well nigh equivalent tó a grant. But, further than this, the United States have not only abandoned their right, but they have declared the use and purpose'to which’ the land in question shall be appropriated.
    Here, then, is an abandonment' of the right of property, and a declaration of trust, and this comes still nearer to a complete legal title. Is there, then, a trustee cápable of taking, although none be named in the acts of Congress ?
    The public.is tire party beneficially interested, ánd perhaps the defect, if any exist, might, in their favor,- not be incurable. One' thing, however, seems clear; the general government, having no power to administer such a trust, and' being the grantor, can not be the trustee or grantee. The particular township iir which the section lies may or may not be inhabited, and of course would not be in a situation to take at the time of the grant. The state, then, is and must be the proper trustee, with unlimited discretion as to the means necessary and proper to effect the object of the reservation. It is a, matter of no, moment that she is not named in the acts of Congress.' Whatever belongs to' the citizens generally, and is the, subject of regulation, management, or adminis-, tration, must be, in the absence of other provisions, under the control of the state. The difficulty as to. the want of a trustee is really an immaterial matter. ’ . ,‘
    In addition to all this is- the fact, that from 1824 to the present time, the state, by legislative enactments, has assumed and exercised the right in question, with the implied consent of Congress. This would appear to remove all doubt.
    Another consideration. It is placed beyond doubt, that, under all the circumstances, the right to the sixteenth section in each township is perfect in the state; and whether to be enjoyed at one time or another, or whether to be received and held according to the original reservation, or to be the subject of compensation, still this right of the state, especially if weighed with long possession, and a quiet, uninterrupted and permitted control and enjoyment of the usufruct, would constitute a valid consideration for a contract of lease or otherwise. No one but the general government would gainsay it, and her right to do so could not be maintained.
    Montgomery, on the same side.
    Walker, for defendants in error.
    1. The same parties are both plaintiff and defendant, and the same parties cannot be plaintiff and defendant. 1 Ala. Rep. 103, 106. Ib. 418, 420. Allen v. Gray, 1 Monroe Rep. 98. Thomas v. Thomas, 3 Littell, 8. Saunders v. Saunders, 2 Littell Rep. 321. 2 Constitutional Rep. S. C. 428. 1 Howard, 82. And so if one defendant be one of the plaintiffs and there be another defendant who is not plaintiff, the rule is the same. 1 Ala. Rep. 418,420.
    2. If plaintiffs be regarded as a corporation quasi, the rule is the same as to plaintiffs’ legal right. The case in 3 Howard, p. 84, only determines that trustees of school lands are quasi corporations, and not corporations proper. See Constitutional Rep. South Carolina, 428. Plaintiff’s remedy is in equity, 1 How. Rep. 82.
    3. But if it should be admitted that a quasi corporation can sue one of the corporators, the plaintiffs do not sue as and in the character of a corporation quasi, and as trustees of school lands. How. & Hutch. Dig. 125, sec. 25. Ib. 131, sec. 30. Bonds or notes taken, p. 132, sec. 31, p. 137, sec. 49.
    
    There is no law authorizing plaintiffs, as trustees of school lands, to sue for the use of any person whomsoever, and if they be a corporation quasi, they can only sue as the law directs. 3 How. 98.
    4. But the sixteenth section never belonged to the state of Mississippi, and the state could not, by law, legally give the trustees' of school lands any authority over the sixteenth section. The United States reserved the sixteenth section from sale, and have never conveyed- or disposed of any title to the same whatever. Revised Code, 511, sec. 12. Trustees as a corporation, can only sue on account of the school lands, and there is no law then, giving them a right to dispose of the School lands.
    Smith, on the same side.
   Mr. Justice.Tsotteh

delivered the opinion of the court.

This was an action of assumpsit upon four promissory notes made by the defendants to the plaintiffs as trustees of schools and school lands in a certain township of-land in Wilkinson county. The défendants pleaded the general issue and two special pleas. The special pleas averred in substance-that Woodard & Mayes, two of the defendants, were also plaintiffs in' the suit. The plaintiffs demurred to each of the pleas, but the court overruled both demurrers, and gave judgment for the defendants. The material error assigned is the judgment of the court below upon the demurrers.

That the same person cannot be plaintiff and defendant in the same action is a proposition which must command universal assent, since no man can sue, himself. The operation of.this rule is, however, confined to natural persons, and then it .seems to be equally 'applicable to persons suing in their own right and to those who sue in a fiduciary’ character. This was the ground of the decision in the cases cited- by the counsel for the defendants from 1 Ala. Rep. p. 103, 148. And for the same reason it has been held that an administrator cannot, though a mere trustee, sue himself to recover a debt due from him to Iris intestate. The remedy in such case is suspended "at common law, and varied by our act of assembly. This was incidentally adverted to by the court in the .case of Kelsey v. Smith, 1 Howard, 82. If-the administrator does not return in his inventory a debt due from himself, any party may petition the court of probates and compel him to do so, and if after the return he do not pay it, his official bond may be sued on. This cáse only shows the rule which is every where recognized, that an administrator- cannot be plaintiff and defendant in. the same suit, any more than one who sues in his own right. But it is urged by the counsel for the defendants that the trustees of schools in this state are liable to the operation of this rule just as an administrator or any other trustee; that they are not artificial persons or a body corporate. We think, however, that there is a wide distinction between the two cases. An administrator is a trustee pro hsac vice only. He is clothed with no one of the attributes of a corporation. The trustees of school lands are endowed with many of the functions of a corpotion. They have perpetual succession in respect to the matters of their trust. It is true, they never have been incorporated by a particular name, nor have they been invested with plenary powers. Having been created by the law for particular and specified purposes, and for the accomplishment of such objects been invested with the right of succession, they are corporations sub modo it is true, but yet they are not the less a corporation for the proper purposes of their creation. Our laws afford us many examples of this sort. Thus the loan officers who are created for each county in the state of New York, by an act of the legislature of that state, have been held to be bodies politic and corporate. So the board of supervisors who are authorized to take obligations to them and their successors in office, by having thus the right of succession secured to them, have been classed among corporations. 2 Kent’s Com. 225; 8 J. R. 422; J. Ch. R. 325.

The trustees of schools and school lands, whose appointment is provided for by the statute of this state, are authorized to appoint a treasurer, and to take a bond from him, payable to themselves and their successors in office, to lease the lands reserved in their respective townships for schools, and to take notes or bonds with surety payable in like manner, for the money due for the lease of the same. Being thus endowed with the right of perpetual succession for all the purposes of their creation, they may well be termed quasi corporations, as they have been. Angel and Ames on Corporations, 16. This being the case, they are of course subject to the rules which govern other corporations; they might have sued under the general title of trustees of schools and school lands. And having the power to do so, the rule is not varied because the names of the several persons who composed the board have been stated in the pleadings. If these views be correct, then it follows that the board of trustees have the same capacity to maintain an action at law against one of its members, who has come under obligation to them by a contract authorized by law, that a bank or other proper corporation possesses in like cases. The ground of defence disclosed by the two special pleas, is therefore no legal answer to the action, and the demurrers should have been sustained.

It is not deemed necessary in the present case to go into an examination of the other question which has been submitted in the argument by the counsel for the defendants; whether under the act of congress which reserves the 16th sections of land from sale, and for the use of schools in the townships is a grant, so as to authorize the various acts of the legislature which have from time to time been passed. This power has been, so long recognized and acted on, that we do not feel inclined to question it at this time, even if we entertained any doubts of its existence. Congress itself has been a witness of the course of legislation in this and other states on the subject of these lands, and has never oifered any objection, nor questioned its propriety, and we shall not do so.

The judgment must be reversed, and the cause remanded for further proceedings.  