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is left of the estate after the first taker's death, or undisposed of by her, was to vest in James Cornwell, manifesting, therefore, most conclusively, a desire and intention to provide for Mrs. Cornwell during her life, and after her death for Mr. Cornwell. These are clearly equivalent words, and are just as effectual as if an express life estate had been granted to Mrs. Cornwell, with a remainder in fee to Mr. Cornwell. The reason upon which the common-law rule rested, that an absolute power of disposal created a fee, and made the limitation over void for repugnancy, was that it was thus placed in the power of the first taker to cut off the limitation by disposing of the estate and the reason underlying the modern American doctrine, where the absolute fee is qualified by words creating only a life estate in the first taker, is that the first taker's power to dispose must be construed to be limited to the right he had in the estate,—the life estate, -and that, if he disposed of his life interest, the remainder would vest immediately upon his death in the person for whom the grantor or devisor intended to provide, and so it is not within the power of the first taker to defeat the remainder, and hence there is no repugnancy, and therefore the principle upon which the common-law rule rested is not violated.

group of cases, and follows the old iron- | any express life estate, but superadded a clad rules of interpretation. It refers to clear intention of the grantor that whatever Lewis v. Pitman, Munro v. Collins, Harbison v. James, and Redman v. Barger, but contains no suspicion of intention to overrule them or to distinguish them. It simply follows the earlier cases, and subscribes to the harsh rule upon which they were bottomed. The case at bar involves the same decd that was construed in Cornwell v. Orton, 126 Mo. 355, and this case was decided on former appeal, by division No. 2 of this court, at the same time and upon the faith of the Orton Case. It is here a second time before the court in banc, and we are asked to review and reverse the decision on former appeal. If we adhere to the decision in Cornwell v. Orton, 126 Mo. 355, it is our plain duty, in the condition of the law in our state as hereinbefore pointed out, to overrule Lewis v. Pitman and its kindred cases. On the other hand, if we reverse Cornwell v. Orton, it is our duty to ourselves and to the bench and bar of the state to expressly overrule Green v. Sutton and its kindred cases: for it is not to be tolerated that two distinct and diametrically opposed lines of decisions on the same principle shall be allowed to stand. It cannot be denied that the rigidity and inflexibility of the common-law rule that a fee could not be limited upon a fee, and that an absolute power of disposal in the first taker created a tee in him, and made the limitation over void for repug- The only remaining question, then, is, nancy, has been relaxed in America, and that How shall this intention be voiced in words, all the cases in both groups, and the cases-by the words "for life only," or by equivafrom other states upon the same subject, lent words pregnant with the same idea and cited in support of each group, concede that expressive of the same intention? One words which would create an absolute fee- theory is purely arbitrary and technical; simple estate, if standing by themselves, the other is common sense. Between the two, may be qualified or limited by other words in all reason and logic, all precedents for the the same instrument, so as to create only a life construction of all laws, contracts, and dealestate in the first taker, and rest a fee in re-ings of mankind, are on the side of the rule mainder. The only practical difference be- laid down in Lewis v. Pitman, 101 Mo. 281, tween the two classes of cases is what words and the second group of cases. This being shall be deemed sufficient to so limit what true, that case and its kindred cases should would otherwise be an absolute fee. If the be hereafter regarded as the law in our state, power to qualify or limit at all be conceded, and Green v. Sutton, and its kindred cases, which the common law denied, as it is con- should no longer be followed. It follows ceded by all the American cases and text that the deed to Goodlett was a conveyance writers, and if the purpose to be thus sub-in trust for Mrs. Catherine Cornwell for life, served is the effectuating of the grantor's or devisor's intention, it logically follows that it can make no difference what the words of qualification or limitation employed may be, so long as they clearly express the intention of the grantor or devisor, and that it is a solecism to concede the right to qualify, but to refuse to enforce the intention unless it is couched in terms arbitrarily required by the courts. If the opinion in Lewis v. Pitman, 101 Mo. 281, had been written for the case at bar, it could not have fitted it more completely than it does. All of the elements presented and decided in that case are involved here. We have here the conveyance, with absolute power of disposal, whether by deed or will, and not qualified by 45 L. R. A.

5

with power in her to dispose of her life inter-
est, and a remainder in fee to James Corn-
well. It also follows that it was not a mere
naked, dry trust, and that the use was not
executed in Mrs. Cornwell under the statute
of uses, even if the statute of uses applies to
the second use, which Scott, J., in Guest v.
Farley, 19 Mo. 147, held the statute of uses
never was intended to do, saying: "The
statute only executes the first use.
upon a use is no estate at law; it is only a
trust, a creature of courts of equity."

A use

The judgment of the circuit court should therefore be reversed.

Sherwood and Brace, JJ., concur.

1.

2.

3.

ALABAMA SUPREME COURT.

Daniel C. ROBINSON et al., Appts.,

บ.

George W. STONE et al.

W. H. PIERCE et al., Appts.,

v.

Daniel C. ROBINSON et al.

George W. STONE, Appt.,

v.

Daniel C. ROBINSON et al.

(........Ala.........)

Recitals in a deed by a trustee showing an application of the purchase money in contravention of the trust do not preclude the purchaser from establishing by parol evidence that the money was properly applied. A deed by a trustee to a third person in contravention of the trust is not void as matter of law, but the legal title will pass to the purchaser subject to the right of the cestui que trust to go into a court of equity and disaffirm the sale or have the purchase price brought in and secured for his benefit.

Lawson v. Lay, 24 Ala. 184; Wyatt v. Rambo, 29 Ala. 510, 68 Am. Dec. 89; Pickett v. Doe, Pope, 74 Ala. 122.

The remaindermen are just as much under the protection of the law as the purchaser, and it is incumbent upon the latter to show affirmatively that he has succeeded in a lawful manner to the former's title, and any hiatus in the process of reasoning by which that result is sought to be established leaves the conclusion without its necessary basis. Woodstock Iron Co. v. Fullenwider, 87 Ala. 584; Doe, Pope, v. Pickett, 65 Ala. 487, 74 Ala. 122; Tyler, Ejectment, pp. 102, 568, 569, 885; 2 Wharton, Ev. §§ 1334-1357; Allen v. DeGroodt, 98 Mo. 159; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 173; Wood, Limitations of Actions, p. 528, note. If the possession is consistent with the superior title, no title beyond that proved is tobe presumed against such superior title, even though a possession of twenty years be shown.

2 Wharton, Ev. §§ 1334, 1353; Lawson, Presumptive Ev. 276, 277; Bailey, Onus Probandi, 257.

Where a power with a condition is comStaleness will bar a suit by remain-plied with for form's sake, but in substance dermen under a deed of trust who delay for is departed from, and the whole transaction forty years to institute proceedings to set is founded in fraud, the execution will be aside a conveyance by the trustee in breach a nullity at law as well as in equity. of the trust and to establish their title, although the life tenant still lives, since all their rights will be cut off by the deed unless preserved by a decree in equity.

(Coleman, J., dissents.)

(June 29, 1898.)

PETITION for modification of a decree af. firming a decree of the City Court of Montgomery in equity in favor of defendants in a suit brought to establish an interest in remainder in certain real estate. Modification granted.

Doe, Willis, v. Martin, 4 T. R. 40; 2 Sugden, Powers, *180; Cholmeley v. Paxton, 3 Bing. 207, 5 Bing. 48, 10 Barn. & C. 564, 3. Russ. Ch. 565, 1 Russ. & M. 418, 1 Clark & F. 60.

When a conditional power is given to deal with another man's title and estate, there

is an implication that not only forms must be strictly complied with, but that honesty and fair dealing shall also be observed; and a departure from the power is fatal.

Jackson, Bowers, v. Crafts, 18 Johns. 110; Harris v. Strodl, 132 N. Y. 392; Russell v.

APPEALS by defendants from judgments of Russell, 36 N. Y. 581, 93 Am. Dec. 540; Al

the Circuit Court for Montgomery County in favor of plaintiffs in actions brought to recover real estate. Reversed.

The facts are stated in the opinion. Mr. W. A. Gunter, for Robinson et al.: The statute of uses vests the legal estate in the remaindermen, subject to the future uses raised under the power duly exercised. 1 Sugden, Powers, pp. 1-106; 2 Washb. Real Prop. *125, 300 et seq.

Even if the whole legal title was in Welsh, he estopped himself by his deed from suing to recover the land, and the right of the remaindermen did not arise until the death of Mary Jane Robinson.

No adverse possession or laches could exist, since each is founded on a neglect to sue for what is wrongfully withheld.

NOTE. On the question of the effect of a deed by a trustee in breach of trust the above case is an unusually important one. The briefs, as well as the opinions, furnish many authorities. As to the adverse possession of land as affect

See also 46 L. R. A. 232.

len v. DeWitt, 3 N. Y. 276; Syracuse Sav. Bank v. Holden, 105 N. Y. 415; Scholle v. Scholle, 113 N. Y. 261.

The possession was not adverse to the remaindermen, because they had no right until the death of the life tenant; and thus such possession has no tendency to establish an execution of the power.

2 Washb. Real Prop. 278; 2 Wharton, Ev. §§ 1334, 1353; Lawson, Presumptive Ev. 276, 277; Bailey, Onus Probandi, 257.

Messrs. Semple & Gunter, also for Robinson et al.:

There is no such thing as a purchaser without notice when the claim or title is founded on a quitclaim deed. Such a deed puts all purchasers thereunder on inquiry, | ing remaindermen during a trust, see also Gindrat v. Western Railway of Ala. (Ala.) 19 L. R. A. 839, with which is a note on the general question of adverse possession against remain dermen and owners of future estates.

and stamps the possession transmitted there | Follansbe v. Kilbreth, 17 Ill. 522, 65 Am. by as suspicious. Dec. 691; Clegg v. Edmondson, 8 DeG. M. & G. 787; Prendergast v. Turton, 1 Younge & C. Ch. Cas. 98; Lowery v. Davis (Ala.) 8 So. 79; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 173.

O'Neal v. Seixas, 85 Ala. 84; Barclift v. Lillie, 82 Ala. 319; Derrick v. Brown, 66 Ala. 162; Oliver v. Piatt, 3 How. 333, 11 L. ed. 622; May v. LeClaire, 11 Wall. 217, 20 L. ed. 50; Dickerson v. Colgrove, 100 U. S. 578, 25 L. ed. 618.

The noncompliance with the formality required by the power, and the violation of the purpose for which alone a conveyance could be made by the trustee, were stamped as infirmatives in the very face of the title, so far as the remainder was concerned.

Austin v. Willis, 90 Ala. 421; Johnson v. Thueatt, 18 Ala. 741; Dudley v. Witter, 46 Ala. 664; Thames v. Rembert, 63 Ala. 566; Shorter v. Frazer, 64 Ala. 74; Gale v. Men sing, 20 Mo. 461, 64 Am. Dec. 201.

A power to sell for reinvestment must be exercised for that purpose, otherwise its exercise is a nullity to all having notice of its violation.

Champlin v. Haight, 10 Paige, 275; Wormley v. Wormley, 8 Wheat. 421, 5 L. ed. 651; Hallett v. Collins, 10 How. 174, 13 L. ed. 376; Mechanics' Bank v. Seton, 1 Pet. 299, 7 L. ed. 152; Oliver v. Piatt, 3 How. 333, 11 L. ed. 622; Emigrant Co. v. Wright County, 97 U. S. 343; American Emigrant Co. v. Wright County, 24 L. ed. 915; May v. LeClaire, 11 Wall. 217, 20 L. ed. 50; Dawson v. Ramser, 58 Ala. 573; Huckabee v. Billingsly, 16 Ala. 418, 50 Am. Dec. 183; Gale v. Mensing, 20 Mo. 461, 64 Am. Dec. 200.

A trustee cannot, by any act of his own, den himself of his character of trustee until he has performed his trust.

Note to Gale v. Mensing (Mo.) 64 Am. Dec. 200; Lamar v. Pearre, 82 Ga. 354.

The power not being exercised for the purpose required in the deed, the conveyance of Welsh and Mary Jane Robinson was void, except as to the life estate of Mary Jane Robinson.

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The right to file a bill to remove a cloud upon a title is given to a person for his benefit exclusively, and not out of regard to the rights of the person having the pretended title.

Tyson v. Brown, 64 Ala. 249.

Whoever heard that because a person may proceed in equity to remove a cloud before there is any actual wrong, and before his right at law accrues, he must do so, and that if he chooses to wait until he may proceed at law on the accrual of his right, he will be met with a presumption adverse to his claim?

Mettler v. Miller, 129 Ill. 630; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 173; Allen v. De Groodt, 98 Mo. 159.

The deed would be invalid on its face as to the remaindermen, and no bill to remove a cloud would lie.

Rea v. Longstreet, 54 Ala. 291; Camp v. Elston, 48 Ala. 81; Daniel v. Stewart, 55 Ala. 278; Lockett v. Hurt, 57 Ala. 198; Florence v. Paschal, 50 Ala. 28; Mitchell v. Spence, 62 Ala. 450; Tyson v. Brown, 64 Ala. 244.

Messrs. Gunter & Gunter for Robinson et al., on rehearing:

The remainders were not equitable. Doe, Willis, v. Martin, 4 T. R. 40; Cockerell v. Cholmeley, 1 Clark & F. 60, 3 Bing. 207, 1 Russ. & M. 418; Losey v. Stanley, 147 N. Y. 560.

But if they were, Welsh conveyed a legal estate to a third party, who had full notice of the "equitable limitations affecting his title," and these equitable limitations attend the legal title wherever it is conveyed, and all such conveyances were void in equity. 1 Perry, Tr. § 321; Underhill, Trusts & Trustees, p. 485, and note 2; Tyler v. Her

Green v. Green, 23 Wall. 486, 23 L. ed. 75;
Champlin v. Haight, 10 Paige, 275; Worm-ring, 67 Miss. 169.
ley v. Wormley, 8 Wheat. 421, 5 L. ed. 651;
Gaines v. Chew, 2 How. 619, 11 L. ed. 402;
Smith v. Ayer, 101 U. S. 320, 25 L. ed. 955;
Long v. Long, 62 Md. 33.

The idea that there is any presumption of law arising from the lapse of twenty years and more, of possession by and under the life tenant, is without foundation.

Allen v. DeGroodt, 98 Mo. 159, 14 Am. St. Rep. 628 et seq., note; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 173; Jackson, Swartwout, v. Johnson, 5 Cow. 74, 15 Am. Dec. 433.

Laches per se is never imputed for a period less than the statute of limitations. Long v. Long, 62 Md. 69; Woodstock Iron Co. v. Fullenwider, 87 Ala. 584; Lamkin v. Reese, 7 Ala. 170; Twin-Lick Oil Co. v. Marbury, 91 U. S. 588, 23 L. ed. 329; Badger v. Badger, 2 Wall. 87, 17 L. ed. 836; Harwood v. Cincinnati C. Air Line R. Co. 17 Wall. 79, 21 L. ed. 558; Marsh v. Whitmore, 21 Wall. 178, 22 L. ed. 482; Vigers v. Pike, 8 Clark & F. 650; Wentworth v. Lloyd, 32 Beav. 467;

Trust property may be followed by the owner as long as it can be traced and identified until it falls into the hands of bona fide purchasers for value without notice.

28 Am. & Eng. Enc. Law, p. 88, and notes; 27 Am. & Eng. Enc. Law, pp. 250, 251 et seq., and notes; Wolffe v. State, 79 Ala. 206, 58 Am. Rep. 590; National Bank v. Connecticut Mut. L. Ins. Co. 104 U. S. 54, Central Nat. Bank v. Connecticut Mut. L. Ins. Co. 26 L. ed. 693; Pennell v. Deffell, 4 De G. M. & G. 372; May v. LeClaire, 11 Wall. 217, 20 L. ed. 50.

The conveyances, then, bearing on their face full and express notice that they were not made in pursuance, but in plain fraud, of the trust, did not per se affect the rights of the remaindermen in equity.

If Welsh had been the mere donee of a power to sell, the conveyances in fraud of the power would not have affected the right to sue for and recover the property within ten years after the death of the life tenant. Because powers must be at least substantial

ly complied with, and because no cause of action would accrue to the remaindermen until the falling in of the life estate.

In all cases in which lapse of time is used as an argument against relief which otherwise would be just, the validity of the defense must be tried upon principles substan

Doe, Willis, v. Martin, 4 T. R. 40; Pickett v. Doe, Pope, 74 Ala. 122; Doe, Pope, v. Pick-tially equitable. ett, 65 Ala. 487; Smith v. Cooper, 59 Ala. 494; Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 13 Am. St. Rep. 78, notes; Allen v. DeGroodt, 98 Mo. 159, 14 Am. St. Rep. 628,

notes.

Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 239; Erlanger v. New Sombrero Phosphate Co. L. R. 3 App. Cas. 1279; Galliher v. Cadwell, 145 U. S. 368, 36 L. ed. 738.

No special conditions are here set up showCan anyone assign a reason why the stat-ing the inequity of permitting the remainute of limitations, or laches, will run against dermen to recover. an equitable right, when they will not against the corresponding legal right?

2 Perry, Tr. § 860; 2 Story, Eq. Jur. § 1520.

If the conveyance of the legal title is made with notice to the purchaser of the equitable limitation on that title, and that the conveyance is not made to subserve that interest but to defraud it, the equitable limitation remains in all respects unaffected and the legal title still stands, as it stood before, in an attitude of strict servitude to the equitable interest.

1 Lewin, Tr. 246; 2 Lewin, Tr. 864; Tyler v. Herring, 67 Miss. 169, 19 Am. St. Rep. 266, notes; Underhill, Trusts & Trustees, 485, and notes; Jones v. Shaddock, 41 Ala. 262; Lee v. Lee, 67 Ala. 406; 2 Spence, Eq. Jur. 197; 27 Am. & Eng. Enc. Law, 1st ed. pp. 250, 251; 28 Am. & Eng. Enc. Law, p. 88; Wilson v. Moore, 1 Myl. & K. 127.

The law says to a party whose rights have been invaded that he may select between certain rights or remedies.

Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. ed. 328.

If property is stolen and sold, the owner has an option to pursue his property or abandon it; abandonment can be imputed only from the operation of the statute of limitations, or from the presumption or prescription after twenty years of undisturbed use.

If the property stolen or taken tortiously belongs to A for life with remainder to B, the statute and laches would run against A from date, and against B from the accrual of his right. The fact that B might, during the life of A, institute quia timet proceedings of any sort, and that he had an election to do so or not. (Ramey v. Green, 18 Ala. 771; Lyde v. Taylor, 17 Ala. 270; 1 Brickell, Dig. 684, § 650), cannot affect his right to assert his claim to the property within the period of the statute of limitations after the death of A.

Laches is of two kinds, one, the mere lapse of time; the other, "acquiescence in special conditions and circumstances which render it inequitable to enforce the demand." Ashurst v. Peck, 101 Ala. 508; Galliher v. The option to institute quia timet proceedCadwell, 145 U. S. 372, 36 L. ed. 740; Rivesings for his own security is not within the v. Morris, 108 Ala. 527. rule of election, which must be made in a The first is a defense peculiar to equity, reasonable time and against which laches and is the equitable bar raised by that court may be imputed, because its exercise, vel non, against stale demands in analogy to the stat-only concerns the remainderman in the asute of limitations where there is no statute sertion of his original property right when applicable. his right to possession accrues.

2 Story, Eq. Jur. § 1520.

This period in this class of laches is never shorter than the period of the statute of limitations to corresponding legal rights, and is judicially fixed at twenty years after the accrual of the cause of action.

it has no application to reversioners and remaindermen until their right of action ac

crues.

2 Perry, Tr. §§ 850, 860; 1 Lewin, Tr. 379; 2 Lewin, Tr. 923; 12 Am. & Eng. Enc. Law, 1st ed. p. 568; 13 Am. & Eng. Enc. Law, 1st ed. p. 720; First Nat. Bank v. Nelson, 106 Ala. 542; Scruggs v. Decatur Mineral & Land Co. 86 Ala. 173.

The second kind of laches is a species of estoppel, in which the lapse of time is only one of the ingredients, or facts, making out the defense.

This kind must be made out with all the certainty of a plea founded upon the special conditions which render the claim inequit

able.

Ashurst v. Peck, 101 Ala. 508; First Nat. Bank v. Nelson, 106 Ala. 535; Galliher v. Cadwell, 145 U. S. 372, 36 L. ed. 740.

If A holds a legal title limited in equity to B for life with remainder to C with a special authority to sell for a single purpose, a sale in open fraud of this purpose is utterly ineffective in equity against the remainderman, unless and until it is confirmed.

Unless the circumstances are such that the proceeds of such a sale have been, with the knowledge of the remainderman, appropriated to his benefit, no option would be presented to the remainderman to choose between inconsistent rights, and there would be no right to infer consent to such a sale and an abandonment of property when there was neither obligation nor necessity to speak. There was no necessity for his own security. because the fraud was shown on the face of the deed.

Shorter v. Frazer, 64 Ala. 74.

If the remaindermen chose to rely on the notice, in the chain of title of the fraud in the sale, as sufficient to keep the cloud, from the mere transfer of the legal title, from affecting their equity, the court cannot impute to them a confirmation of the fraud and an

abandonment of their rights in remainder, | Eng. Enc. Law, p. 904, note 1; Carrigan v. because they were not more prudent.

Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 13 Am. St. Rep. 78, notes; Allen v. DeGroodt, 98 Mo. 159, 14 Am. St. Rep. 628, notes; Goodman v. Winter, 64 Ala. 434, 38 Am. Rep. 13.

Unless the equitable remainderman affirms the conveyance of the legal title as a bar to his equity, his right remains unaffected. Goodman v. Winter, 64 Ala. 434, 38 Am. Rep. 13.

That this was a legal remainder, and not an equitable, though it cannot, as we understand the law, make any difference whether it was a legal or equitable remainder, seeFerrand v. Wilson, 4 Hare, 344; Osbrey v. Bury, 1 Ball & B. 53; Goodman v. Winter, 64 Ála. 434, 38 Am. Rep. 13; 2 Spence, Eq. Jur. 574.

In Losey v. Stanley, 147 N. Y. 560, a case in every respect like this, the court held the remainders to be legal, while here they are equitable.

Drake, 36 S. C. 354; Goodrich v. Proctor, 1
Gray, 569.

It is unimportant that the power of disposition is contingent or discretionary. The legal title still vests.

Gibson v. Montfort, 1 Ves. Sr. 485.

Lewin on Trusts, 3d Am. ed. p. 250, says: "A trust to sell, even on a contingency, confers a fee simple as indispensable to the execution of the trust."

Even a mortgage, with power of sale, vests the legal fee in the mortgagee.

Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Toomer v. Randolph, 60 Ala. 356; Slaughter v. Doe, Swift, 67 Ala. 496; Farris v. Houston, 74 Ala. 162; Garland v. Watson, 74 Ala. 323; Coffey v. Hunt, 75 Ala. 236; Kelly v. Longshore, 78 Ala. 203; Richardson v. Dunn, 79 Ala. 167.

The legal title being in the trustee, passed by his deed (Mrs. Robinson concurring by joining in the deed) to the purchaser Wright. This is none the less so because When there is a divided ownership, as a the purchase money was paid to Mrs. Robinlife estate and remainder, limitations and son instead of the trustee. For it is thorlaches cannot operate against the remainder oughly settled that a conveyance from the until the termination of the life estate, al- trustee will pass the legal title, although though in the meantime quia timet proceed-made in breach of the trust. In such case ings may be instituted for the security, when necessary, of the future right.

Ramey v. Green, 18 Ala. 775; Goodman v. Winter, 64 Ala. 434, 38 Am. Rep. 13.

No party to an illegal or fraudulent contract can claim any benefit from it, and all persons who obtain possession of trust funds or property) with a knowledge that their title is derived from a breach of trust will be compelled to restore such trust property. 2 Lewin, Tr. §§ 857-864; Gray v. Lewis, L. R. 8 Eq. 526; Wilson v. Moore, 1 Myl. & K. 127; Hill v. Simpson, 7 Ves. Jr. 152; May v. LeClaire, 11 Wall. 217, 20 L. ed. 50; LeNeve v. LeNeve, 1 Ambl. 436, 2 Lead. Cas. in Eq. 109; Wimbish v. Montgomery Mut. Bldg. & L. Asso. 69 Ala. 575.

Messrs. Pettus & Pettus, W. S. Thorington, Alexander T. London, and Phares Coleman, for Stone and Pierce: When real estate is conveyed by deed, will, or mortgage, and power is given to the grantee to sell and convey, a fee in the real estate so conveyed is thereby vested in such grantee. In other words, the legal title passes by such conveyance. This, for the obvious reason that to convey a fee the grantor must himself be the owner of a fee. No one can convey a greater legal title in lands than he himself possesses.

the purchaser becomes charged with the trusts by construction, and the remedy of the cestui que trust is, not to recover the land, but to charge it in the hands of the trustee by appropriate proceedings in equity. The cestui que trust is as powerless in a court of law after a conveyance as before, for no change is made that invests him with the legal estate, and it is only the legal estate of which a court of law can take cognizance.

Huckabee v. Billingsly, 16 Ala. 414, 50 Am. Dec. 183; Dawson v. Ramser, 58 Ala. 573; Milhous v. Dunham, 78 Ala. 48; Hairston v. Dobbs, 80 Ala. 589; Gale v. Mensing, 20 Mo. 461, 64 Am. Dec. 197; May v. LeClaire, 11 Wall. 217, 20 L. ed. 50; Canoy v. Troutman, 29 N. C. (7 Ired. L.) 155; Dawson v. Hayden, 67 Ill. 52; Graham v. Anderson, 42 Ill. 514, 92 Am. Dec. 89; Reece v. Allen, 10 111. 236, 48 Am. Dec. 336; Bank of United States v. Benning, 4 Cranch, C. C. 81; Koester v. Burke, 81 Ill. 436; Hannibal & St. J. R. Co. v. Green, 68 Mo. 177; 1 Perry, Tr. § 328; 2 Perry, Tr. § 814; Stall v. Cincinnati, 16 Ohio St. 169.

But the conveyance affects materially the equitable rights of the cestui que trust or remainderman. The original trustee stands discharged, except as to accountabilBlagrave v. Blagrave, 4 Exch. 549; Doe, ity for the breach. The trust, which before Keen, v. Walbank, 2 Barn. & Ad. 554; Wat- the conveyance had been an express trust, reson v. Pearson, 2 Exch. 581; Shaw v. Weigh, mains no longer an express trust. It is 2 Strange, 798; Gibson v. Montfort, 1 Ves. changed into a trust by construction, in the Sr. 485; Watkins v. Frederick, 11 H. L. Cas. hands of the purchaser. As regards the 358; Chamberlain v. Thompson, 10 Conn. right to enforce it, it remains the same; 243, 26 Am. Dec. 390; Fisher v. Fields, 10 but the changed character of the trust Johns. 505; Cleveland v. Hallett, 6 Cush. changes the time within which it must be 403; Hawkins v. Chapman, 36 Md. 83; enforced. Against the trust while it was exSpessard v. Rohrer, 9 Gill, 261; Huckabee press, the statute of limitations did not run, v. Billingsly, 16 Ala. 414, 50 Am. Dec. and the doctrine of prescription did not ap183: 1 Perry, Tr. § 315; 18 Am. &ply. But both the statute and prescription

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