may be invoked by the purchaser-the con- | phis & C. R. Co. 87 Ala. 633; Lansden v. structive trustee.

Townshend v. Townshend, 1 Bro. Ch. 550; Bonney v. Ridgard, 1 Cox, Ch. Cas. 145; Beckford v. Wade, 17 Ves. Jr. 87; Lockey v. Lockey, Prec. in Ch. 518; Collard v. Hare, 2 Russ. & M. 675; Cholmondeley v. Clinton, 2 Jac. & W. 190; Atty. Gen. v. Fishmongers' Co. 2 Beav. 158, 5 Myl. & C. 15; Andrew v. Wrigley, 4 Bro. Ch. 125; Portlock v. Gardner, 1 Hare, 594; Lewin, Tr. 2d Am. ed. 580. Purchasing the property from the trustee, Welsh, and obtaining his conveyance and the written assent of Mrs. Robinson, there was a strict compliance with the requirements of the power, except that the purchase money was recited to have been paid to Mrs. Robinson, instead of Welsh, the trustee. The title having been in Welsh, and conveyed by him to Wright, this payment to the wrong person could not invalidate the deed as a transfer of title.

Bone, 90 Ala. 446; Knabe v. Burden, 88 Ala. 436; Semple v. Glenn, 91 Ala. 245; Lowery v. Davis (Ala.) 8 So. 79; Jackson, Swartwout, v. Johnson, 5 Cow. 74, 15 Am. Dec. 433; Bradstreet v. Clarke, 12 Wend. 603; Andrews v. Sparhawk, 13 Pick. 400.

Where the purchaser paid full value and was guilty of no fraud, the mere fact that the money was paid to a person other than the trustee will not constitute a breach of trust, when it appears that the trustee ratified and sanctioned the payment by joining officially in the conveyance.

Norman v. Towne, 130 Mass. 52; Hope v. Liddell, 21 Beav. 183; Townsend v. Warren, 1 Jones & L. 221, note (a); Bowen v. Evans, 2 H. L. Cas. 257; Ala. Code, § 1843; Bonney v. Ridgard, 1 Cox, Ch. Cas. 145; Lockey v. Lockey, Prec. in Ch. 518; Collard v. Hare, 2 Russ. & M. 675; Cholmondeley v. Clinton, 2 Jac. & W. 190; Atty. Gen. v. Fishmongers' Co. 2 Beav. 158, 5 Myl. & C. 15; Portlock v. Gardner, 1 Hare, 594; Ashton v. Atlantic Bank, 3 Allen, 217.

Messrs. Pettus & Pettus, for George W. Stone, on rehearing:

Whenever there is an estate for life in one

Wright, having participated in the misappropriation of the funds, received and held the title of the property subject to that charge an implied trust. Anyone succeeding to his right can occupy no higher ground than he stood on, in consequence of the notice his deed furnished of the improper pay-person, and an estate in remainder or in rement of the purchase money to Mrs. Robinson instead of Welsh. Such were the rights and such the liabilities of the parties and of the property, when viewed from the original standpoint. The right of the beneficiaries to complain of this breach of trust originated then and there, and limitation and prescription against its assertion commenced to run at that time. The present actions are therefore barred.

version in another, whether such estate be created by deed, or will, or the law, and there is a power to sell the fee, and such sale is made, though defectively, during the life estate, and the purchaser holds open, notorious, and uninterrupted possession for more than twenty years, claiming the fee, the remainderman or reversioner is barred, though he sue the day after the life tenant dies.

Lowery v. Davis (Ala.) 8 So. 79; Woodstock Iron Co. v. Fullenwider, 87 Ala. 584; Lansden v. Bone, 90 Ala. 446; Matthews v. McDade, 72 Ala. 377; Doe, Gosson, v. Ladd, 77 Ala. 223; Melvin v. Proprietors of Locks & Canals, 17 Pick. 255.

The deed from Falconer to Welsh, trustee, did not create a "dry trust," or a trust "for the mere benefit of third persons."

Code of 1886, § 1831; You v. Flinn, 34 Ala. 409.

This deed was made for the use and benefit of Mrs. Robinson, a married woman, for life at least. And, in such cases where a trust is created for the benefit of a married woman, the statute does not execute the trust.

Rhodes v. Turner, 21 Ala. 210; Gantt v. Phillips, 23 Ala. 276; Lay v. Lawson, 23 Ala. 377; Barnett v. Tarrence, 23 Ala. 463; Harvey v. Thorpe, 28 Ala. 250, 65 Am. Dec. 344; McArthur v. Carrie, 32 Ala. 75, 70 Am. Dec. 529; Milton v. Haden, 32 Ala. 30,70 Am. Dec. 523; Blackwell v. Blackwell, 33 Ala. 57, 70 Am. Dec. 556; Wyatt v. Scott, 33 Ala. 313; Austin v. Jordan, 35 Ala. 642; Roundtree v. Brantley, 34 Ala. 551, 73 Am. Dec. 470; Nelson v. Goree, 34 Ala. 580; Harrison v. Heflin, 54 Ala. 552; Goodwyn v. Baldwin, 59 Ala. 127; Fleming v. Gilmer, 35 Ala. 62; Harrison v. Harrison, 39 Ala. 489; Philippi V. Philippi, 61 Ala. 41; Molton v. Henderson, 62 Ala. 426; Marston v. Rowe, 39 Ala. 722; Worley v. High, 40 Ala. 171; Baker v. Prewitt, 64 Ala. 551; Garrett v. Garrett, 69 Ala. 429; White v. Hutchings, 40 Ala. 253, 88 Am. Dec. 766; Kirby v. Kirby, 40 Ala. 492; Walker v. Crawford, 70 Ala. 567; Matthews v. McDade, 72 Ala. 377; McCartney v. Bone, 40 Ala. 533; Foster v. Chamberlain, 41 Ala. 158; Kelly v. Hancock, 75 Ala. 229; Doe, In case the property is conveyed to a Gosson, v. Ladd, 77 Ala. 223; Ware v. Cur-trustee, for the use of a married woman, ry, 67 Ala. 274; Holt v. Wilson, 75 Ala. 58; life, with remainder to her children, the Smith v. Gillam, 80 Ala. 296; Long v. Par- trustee holds the entire legal title during the mer, 81 Ala. 384; Bozeman v. Bozeman, 82 life estate (not the title of the life estate Ala. 389; Woodstock Iron Co. v. Fullenwi only); and at the death of the life tenant der, 87 Ala. 584; Ross v. Goodwin, 88 Ala. the statute executes the trust, or terminates 390; Duncan v. Williams, 89 Ala. 341; Wer- the legal title of the trustee, and vests the born v. Austin, 82 Ala. 498; Davis v. Mem-legal title in the remaindermen, then.

Harton v. Harton, 7 T. R. 652; Hawkins v. Luscombe, 2 Swanst. 391; Magniac v. Thompson, Baldw. C. C. 363, 7 Pet. 348, 8 L. ed. 709; Perry, Tr. § 310; Rice v. Burnett, Speers, Eq. 583, 42 Am. Dec. 336.

The trustee had power to sell the fee; so he must have retained the title.

for

Perry, Tr. § 320; Greenwood v. Coleman, 34 Ala. 150; 4 Kent, Com. 310, note; Rogers v. Gibson, 1 Ves. Sr. 485; Schaffer v. Lavretta, 57 Ala. 14; Huckabee v. Billingsly, 16 Ala. 418, 50 Am. Dec. 183; Gunn v. Barrow, 17 Ala. 743; Powell v. Glenn, 21 Ala. 458; Witter v. Dudley, 36 Ala. 135; Jones v. Reese, 65 Ala. 134; Grimball v. Patton, 70 Ala. 626; Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Christian v. American Free-inson, conveyed the same by deed, in fee, hold Land Mortg. Co. 92 Ala. 130; Bercy v. Lavretta, 63 Ala. 374; Stein v. Gordon, 92 Ala. 532; Connell v. Cole, 89 Ala. 381.

with warranty, to said Mary C. Pierce, who went into immediate possession as owner, and held independent adverse possession thereof, until her death, in 1889. The said Mary Jane Robinson died in December, 1889. On the 5th day of August, 1890, a bill was filed in the chancery court by the remaindermen created by the Falconer deed, against the devisees of said Mary C. Pierce, and against the said George W. Stone, setting up alleged breaches of trust on the part of Welsh, the trustee, known to and participated in by the said several purchasers from him, and known to the said Stone, in that

Head, J., delivered the opinion of the the purchase money was not in either case

this court, and are now before us. We have before us also the said application for a modification of the former opinion in the equity

cause.

page 107, will be found a full discussion of these subjects, collecting a great many authorities, with copious extracts from adjudged cases; and in a note of over thirty pages, in Tyler v. Herring (Miss.) 19 Am. St. Rep. 266 (67 Miss. 169), Mr Freeman sums up the law, collating scores of cases, upon well-nigh every question which can arise in reference to estates of trustees, their powers and duties, and the manner and effect of their execution, supporting the principles above laid down and others which will be relied upon in this opinion.

It is also laid down, and nowhere disputed, that, “where an estate is given to trustees, in fee, upon trusts that do not exhaust the whole estate, and a power is superadded which can only be exercised by the trustees conveying in fee simple, the trustees will take the fee, and the estate conveyed by then will be sustained by the fee in them, and not by the mere power." 1 Perry, Tr. § 316. This describes the Falconer deed, in question. The conveyance to Welsh was, in terms, in fee. The active duty, apart from the power to sell, was to preserve the equitable separate estate of Mrs. Robinson during her life.. If the deed had stopped there, Welsh would have taken no greater estate than for her life, for that would have limited the necessity for a trust; and, such a trust not affecting the estate in remainder, the legal estate in remainder in fee, dependent upon the precedent life estate, would have at once vested in the designated remaindermen by operation of the statute of uses. But there was the superadded power to sell the fee, and this retained the entire estate in the trustee; and in him that title must have remained until he devested himself of it by grant; or, not having granted it, until the death of Mrs. Robinson, when her request for the ex

The opinion we now hold is that the conveyances executed by Welsh, the trustee, though infected with palpable breaches of trust, apparent upon the faces of the conveyances themselves, were yet, in the view of a court of law, valid executions of the trust, passing the legal title in fee to the premises to the grantees, respectively, leaving a resort to a court of equity, as the appropriate and only remedy of the beneficiaries of the trust for redress of the breaches of trust committed by Welsh and his vendees. The first questions are: What title did Welsh, as trustee, have when he conveyed to Wright and Pierce? Was it a fee or less estate? If there is an axiom in the law, it must be regarded as axiomatic, in the construction of active trusts, that the trustee (not a bare donee of a power), irrespective of the estate the instrument purports to convey, will take thereunder precisely that quantum of legal estate which is necessary to the discharge of the declared powers and duties of the trust, no more and no less; so that, if the instrument imports a larger estate than is thus essential, it is cut down to the measure of the exigencies of the trust, as, where the conveyance to the trustee is in fee, and the trusts require only a life estate in the trustee, only a life estate is vested in him; and if the conveyance is, in terms, of a life estate, and a fee in the trustee is necessary, his estate is expanded or enlarged into a fee: or, to quote Mr. Lewin: "First, wherever a trust is created, a legal estate sufficient for the execution of the trust shall, if possible, be implied;" and, "secondly, the legal estate limited to the trustee shall not be carried further than the complete execution ofercise of the power would have become imposthe trust necessarily requires." All commentators and adjudged cases, including a number of our own decisions, concur in these propositions; and, as the principle is not disputed in this case, we will not take the time to cite them. It is also a rule, upon which all are agreed, that whatever be the limitations of the instrument, and whatever estate the trustee takes, in the beginning, the legal estate in the trustee is devested out of him, and passed into the cestui que trust, upon the instant that the duties and powers of the trust, from any cause, cease to be active, or cease to require a legal title in the trustee. Again, it will not be questioned that a power to sell the estate in fee, conferred upon the trustee by the terms of the trust, invests him with the legal title in fee; for the principle is not only self-evident, but is so expressly declared in all authorities upon the subject. And this is so even where the trust to sell is on a contingency. 1 Lewin, Tr. 213 (3); Huckabee v. Billingsly, 16 Ala. 414, 50 Am. Dec. 183. As where the sale is to be upon request of another person, and the trustee was never actually called upon to exercise the power of sale. 27 Am. & Eng. Enc. Law, p. 115, note. In this volume, beginning at

sible; or until, by the death of the trustee, or the processes of a court of equity, in the exercise of its supervision of trustees, or by contract of all parties concerned, the estate should have been devolved upon another.

Then, the inquiry arises, What has become of this fee-simple title so vested in Welsh, the trustee? The case shows that during the life of Mrs. Robinson, upon her request, in writing, manifested by her signing and sealing the deed in the one case, and actually joining in the deed in the other, Welsh, the trustee, upon valuable considerations, by his deeds, respectively, granted, bargained, sold, and conveyed to Wright and Pierce, respectively, his entire title and estate in the premises,-in the one case with the usual covenants of warranty, etc., and the other by quitclaim. In the deed to Wright he expressly declares, upon its face, that he conveys as trustee; in that to Pierce the law imputes the act to that capacity for the reason that he had no pretense of connection with the land, or estate therein, except as trustee. The law to this effect is not disputable. Doe, Gosson, v. Ladd, 77 Ala. 223; Tyler v. Herring (Miss.) 19 Am. St. Rep. note on page 292 (67 Miss. 169). See full

gal estate." 1 Perry, Tr. 3d ed. § 321. Hill, Trustees, *175, 282, 283, state the same doctrine; 2 Washb. Real Prop. *484 et seq., the same. See also Tiffany & B. Trusts & Trustees, 824 et seq.,

discussion of the question in Gindrat v. Montgomery Gaslight Co. 82 Ala. 596. Mr. Lewin (*221) says: "It may be stated as a general rule that the legal estate in the hands of the trustee has, at common law, precisely the same properties and incidents as if In Huckabee v. Billingsly, 16 Ala. 414, 50 the trustee were the usufructuary owner." Am. Dec. 183, Huntington executed to Harrell He proceeds to give numerous illustrations a deed in trust to secure a debt due to Harof the rule, and, reaching *225, says: "A rell, and secondarily to secure debts due to trust estate, whether real or personal, may, the Branch Bank at Mobile. Without the debts at law, be conveyed, assigned, or encumbered to the bank being paid, the trustee, in plain by the trustee like a beneficial estate; and, contravention of the trust, executed to the if there be cotrustees, each may exercise the trustor, Huntington, a quitclaim deed in conlike powers of ownership over his own pro- sideration of the payment of the Harrell portion. Thus, if lands be vested in trus- debt. Afterwards, in strict pursuance of the tees as joint tenants, each may, at law, re- power of sale contained in the trust deed, he ceive the rents, and each may, at law, sever (the trustee) sold the property to the plainthe joint tenancy by a conveyance of his tiff, and executed to him his deed thereto. share." He also shows that a devise by the The court held that the quitclaim of the trustee of the trust estate will, at law, pass trustee to the trustor devested the title of his title to the devisee. But, of course, all the former, and revested it in the latter, and such dispositions are subject to the equitable that the action of trespass to try titles, rights of the cestui que trust. Thus, the founded on the subsequent deed of the trustsame author says, at *572: "In a court of ee to the plaintiff, under the power, could not law, the trustee, as the absolute proprietor, be maintained. Chief Justice Collier dismay, of course, exercise all such powers as cussed the subject at length, saying, inter the legal ownership confers; but, in equity, alia, that "a trust estate, whether real or the cestui que trust is the absolute owner, personal, may, like a beneficial estate, be and the question we have to consider in this conveyed, assigned, or encumbered by the place is how far the trustee may deal with trustee, at law. As the dry legal estate in the estate without rendering himself respon- the hands of the trustee is affected by the sible in the forum of a court of equity." He operation of law, and may be disposed of by then proceeds to set forth, at length and in the act of the trustee, precisely in the same detail, the rights, powers, and liabilities of manner as if it were vested in him beneficialthe trustee, in a court of equity. Mr. Perry ly, so it confers upon him all the legal privsays: "As a general rule, the legal estate ileges, and subjects him to all the legal burin the hands of a trustee has at common law dens, that are incident to the usufructuary precisely the same properties, characteristics, possession. Thus, he may sue at law reand incidents as if the trustee were the abso- specting the trust estate; the cestui que lute beneficial owner. The legal title vests trust, though the absolute owner in equity, in him, together with all the appurtenances is regarded in a court of law in the light of and all the covenants that run with the land. a stranger." See also Herbert v. Hanrick, The trustee may sell and devise it or mort-16 Ala. 581. In McBrayer v. Cariker, 64 gage it, or it may be taken on execution. It Ala. 50, Chief Justice Brickell said: "The may be forfeited, and it will escheat on fail-general rule, insisted on by appellant, may be ure of heirs, and so it will descend to heirs on the death of the trustee. All these properties and incidents attach to the legal estate at common law, whether in the hands of a trustee or of an absolute owner; but these incidents do not generally interfere with the proper execution of the trust, for all conveyances and all encumbrances made or imposed upon the estate by the trustee, for other purposes than those of the trust, or in breach of the trust, are utterly disregarded by a court of equity, whatever may be the effect of such conveyances or encumbrances in a court of common law. And as the trustee may, in a court of law, as a general rule, deal with the legal estate in his hands as if he was the absolute owner, so the cestui que trust in a court of equity may deal with the equitable estate in him. He is the beneficial and substantial owner, and, in the absence of any disability, that is, if he is sui juris, he may sell and dispose of it; and any legal conveyance of it will have, in equity, the same operation upon the equitable estate as a similar conveyance of the legal estate would have at law upon the le

conceded that at law the trustee, clothed with the legal title, unless restrained by the terms of the trust, may convey, assign, or encumber the trust estate; and, if the cestui que trust is injured, he must resort to a court of equity for relief,"-citing Huckabee v. Billingsly, 16 Ala. 414, 50 Am. Dec. 183. But in that case the conveyance by the trustee relied upon was made after the active duties of the trustee, under the terms of the deed, had terminated, if, indeed, the trust had ever been an active one,-a question which the court said it was unnecessary to decide; and it was correctly held that the trustee had no title to convey at the time he executed his deed. The authorities are uniform that after all power in the trustee to perform an active duty, under the peculiar terms of the trust ceases, his title, which was commensurate only with the duty, also ceases, and thereafter he can convey none, to another. Comby v. McMichael, 19 Ala. 747; Doe, Gosson, v. Ladd, 77 Ala. 223. In Hairston v. Dobbs, 80 Ala. 589, the executor of a will was given "full power to purchase and sell any property he may think necessary and

proper,
erty for the benefit of my estate." He sold
and conveyed lands of the estate to Dobbs.
Held that, though the conveyance may have
been made in payment of an individual debt
due by the executor to Dobbs (a palpable
breach of trust), yet the conveyance passed
the legal title to the latter, and the devisees
could not for that reason maintain ejectment
against that deed. The court confined the
devisees to their appropriate remedies for the
breach of the trust; and hence these devisees
were remaindermen.

or to dispose of any prop- | have no such statute. The common law upon
the subject obtains with us in all its vigor,
except as to the descent of trust estates.