OPINION OP THE COURT.

This was a proceeding brought by the appellant to condemn certain land, the property of the appellees, for the use of the University of New Mexico.

The appellees filed their motion to dismiss the petition of appellant, for the reason that the same should have been brought in the name of the Regents of the University and not in the name of the Territory.

The court below granted the motion of the appellees, dismissed the petition and appellant prosecutes this appeal, assigning as error the action of the court below in granting appellee’s motion.

The proceeding was brought under Sec. 3693, Compiled Laws 1897, which reads as follows:

Sec. 3693. “Hereafter, whenever it shall be deemed necessary by the Board of Regents of the University of New Mexico, and to acquire title to any lands for the use of any such institution and the owner or OAvners of such lands are unable or mrwilling to accept a fair and reasonable price for such lands, then, and in that event, each of the several boards may acquire, in the name of the Territory of NeAV Mexico, title to so much of said land or lands as shall be deemed necessary by any such board for the use of any such institution, in the same manner as now pro-A’ided by law for the condemnation of land for railroad purposes, and such land so taken shall be deemed to be taken for public use.”

1 We are of the opinion that the contention of the appellant is correct. In this proceeding the Territory sought to obtain the legal title to land in question, to hold the same for the use and benefit of the University. In other words the Territory by bringing this suit and obtaining the legal title to said lands for the use and benefit of the University, would thereby create an express trust and under sub-see. 3 of Sec. 2685, Com. Laws 1897, could maintain such suit, as trustee without joining the University or the Board of Regents of the University.

2 As this case must be reversed, it may be-well to call attention to the fact that the petition is subject to demurrer, in failing to allege that the acquisition of the land was deemed necessi^py by the Board of Regents of the University.

3 It is asserted in one of the briefs that the court dismissed the petition because it failed to allege the possession of funds to pay for the land. We do not consider the absence of such an allegation however, fatal either upon motion or demurrer. It is at most a matter of defense to be raised by answer.

For the reasons above assigned, the judgment of the lower court will be reversed and the cause remanded for further proceedings, and it is so ordered.