or nonexistence is not a matter of inquiry. | complainant had his remedy at law, in that Thus, it is impossible to find a case any- the breach of the trust rendered the sale and where where the trustee was sui juris, and conveyance to the purchaser void at law, and was confessedly clothed with the legal title, that his only remedy was to take back the and his deed was not immoral and void, as land; what would be the ruling upon the deoffensive to public policy, that his convey- murrer? To ask the question is to answer ance was assailed, except because it was in it. The law prescribes no fixed, unalterable contravention of the trust; and in every such consequence of a breach of trust, committed case, at law, which our research discloses in the disposition of a trust estate. The (and we have spared no pains in that be- remedies, in equity, of the cestui que trust, half), with one exception, to which we will are various, and subject to his election. He refer, the parties complaining were remitted may, we repeat, affirm the breach, submit to to their remedies in equity. See the Alaba- the conveyance, and elect other redress ma cases above referred to; also, the numer- against the trustee and purchaser. If an inous authorities in point collected upon the fant, the court may elect for him. The rebriefs of counsel, to which we add, Taylor v. maindermen in this cause may have deemed King, 6 Munf. 358, 8 Am. Dec. 746; Coxe v. the sales advantageous to them, by reason of Blanden, 1 Watts, 533, 26 Am. Dec. 83; their power to have the purchase money Reece v. Allen, 10 Ill. 236, 48 Am. Dec. 336; brought into and secured by the court of Gale v. Mensing (Mo.) 64 Am. Dec. 197, and equity, for their ultimate enjoyment, chargextended note; Stephens v. Clay, 31 Am. St. ing the payment of the sum, not only upon Rep. 328 (17 Colo. 489). the trustee and purchasers personally, but upon the lands inequitably disposed of by the trustee. To determine that the breach of trust is of itself conclusive of the invalidity of the sale would be to determine that the only recourse of the cestui que trust is to reclaim the land. If the sale and conveyance are to be treated as nullities, then, although the lands may have sold for a large price, or may have enormously diminished in value since the sale, or, being valuable principally for their improvements, the improvements may have been destroyed after the sale, without fault of the purchaser, yet the benefits of these casualties will be conferred upon the culpable purchaser, by securing him exemption from the restoration of the original agreed purchase money to its legitimate channels and compelling the cestui que trust to take the land only, in its denuded or valueless condition. Of course, the cestui que trust may, by his bill, elect to annul the legal conveyance, and reclaim the land, instead of other redress. These elections caunot, of course, be made in a court of law.

The exception referred to is the doctrine of some Missouri and Mississippi cases, and perhaps of one or two other states,-that, when a trust deed to secure debts confers a power of sale to be exercised after giving a prescribed notice, the notice is a condition precedent to any conveyance of the legal title by the trustee. Ohnsburg v. Turner, 87 Mo. 127; Enochs v. Miller, 60 Miss. 19. It is familiar to this court that such is not the law in this state, as settled by Huckabee v. Billingsly, 16 Ala. 414, 50 Am. Dec. 183, and many subsequent analogous cases. With us such an irregular sale is voidable, and the equity of redemption, without regard to the statutory right of redemption, will continue until enforced or barred by laches. In Robinson v. Cahalan, 91 Ala. 479, there was a fatally defective execution of the power of sale in a mortgage on account of nonconformity to the prescribed formalities as to notice, etc., but a deed was made to the purchaser by the mortgagee; and it was held that this deed, although not a foreclosure of the mortgage, for the want of the prescribed notice, etc., passed the legal title of the mortgagee to the purchaser, and on that deed the purchaser recovered, in an action of eject ment.

The rule is universal that upon breach of trust by a trustee, howsoever manifested, the cestui que trust may affirm or disaffirm the breach at his election. For instance, no one would doubt for a moment the equity of a bill filed, in due season, by a cestui que trust against the trustee who, holding the legal title, sold and conveyed to a purchaser, both of whom engaged in misappropriating the purchase money, and against such purchaser, affirming the sale and conveyance, and electing to hold the trustee and purchaser responsible for the misappropriation, and to have the money reclaimed, and the same laid out, under the direction of the court, in other property upon the same trusts, securing its payment into court, or to another trustee appointed by the court, by a lien on the land conveyed to the purchaser. Suppose a demurrer to such a bill, objecting that

Again, were we to hold that the Wright and Pierce deeds are void, because of the breaches of trust apparent upon the deeds themselves, we would presuppose that the recitals of payment of the purchase money to Mrs. Robinson, in the one case, and her husband, in the other, conclusively establish, as matter of law, beyond all issue, investigation, or inquiry, that there was a substantial misappropriation of the purchase money, amounting to a breach of trust. And not only this, but that they conclusively establish, as matter of law, beyond all issue, investigation, or inquiry, that the purchase money took the direction indicated by the recitals, without any act of omission or commission on the part of the remaindermen, or either of them, estopping them, in equity, to impeach the transactions. Although the purchasers and trustee or their representatives may stand ready and able to aver and prove that the purchase money was actually, honestly, and judiciously invested in other property upon the same trusts,-in 'slaves, it may be, who were lost by death or

paid by the purchaser to the life tenant and her husband, instead of to the trustee who alone was authorized to receive it; and praying for such lawful redress as the complainant, as cestui que trust, might elect and claim. Thus, upon the principle that a deed is void because of the breach of trust, we would have a bill which showed, by its allegations, that the deed was absolutely void, from its inception; and, unless the bill was so framed as to justify a decree canceling the deed as a cloud upon the complainant's title, it would go out of court for want of equity. Again, the rights of the parties in reference to the verity of the recitals must be correlative. The trustee is the embodiment, so to speak, of the cestuis que trust. Through him, they are parties to the deed. They are separate from him, and can assail his acts only in equity. If recitals showing a breach are conclusive, as a corollary, they are conclusive when they show conformity; thus excluding, in the latter case, all redress.

A purchaser from a trustee, in contravention of the trust, in no sense becomes thereby an express trustee. He becomes a trustce, in invitum, by construction of law. He is a constructive trustee. He holds actually in his own right, and in hostility to the world; but a court of equity, as Judge Story puts it, will "force a trust upon his conscience," and compel him to perform it or answer for its fruits. 2 Story, Eq. Jur. 1257; 2 Washb. Real Prop. 177, § 21; Hill, Trustees, *144; 1 Perry, Tr. §§ 217, 241; 2 Pom. Eq. Jur. § 1048; Smyth v. Olirer, 31 Ala. 39. A resulting trust, though by no means an express one, because not declared in the deed out of which it arises, ap

emancipation, or in stocks or bonds which | false; that the purchase money was, in fact, went into the hands of the trustee, or even in lands, with all the necessary muniments of title; or though they be ready and able to aver and prove that the transactions took the shape they did, by the express consent and request, in writing, it may be, of all the remainderinen,-yet the mere circumstance that the deeds recite payment of the money to Mr. and Mrs. Robinson forever precludes them; forever shuts them out from all opportunity to explain and show that the trust requirements were, in fact, honestly and judiciously carried out, or that the wishes and desires of the remaindermen, expressly made known, were honestly observed. A practical test: Suppose the remaindermen had, within a reasonable time after the sales, filed their will to redress the breaches of trust indicated by the recitals in question, electing the nature of relief deemed most advantageous to them, to which the trustee and purchasers answered or pleaded in bar a due reinvestment, such as we have above supposed, or an act of clear estoppel, as supposed; would any court hold that such answer or plea, established by proof, would not have defeated relief? Most assuredly not. See the consequences of such a rule: It will not be contended that a deed by a trustee, whose recitals show a breach of trust, possesses any other or greater invalidity than one whose recitals show due conformity to the trust, but which, upon extrinsic proof, is shown to have been executed in breach of the trust, participated in by both the trustee and purchaser. The only difference is one of evidence. In the one case the recitals are prima facie evidence of the breach, casting the burden of proof upon the purchaser; in the other they are prima facie evidence of con-proaches more nearly thereto, in that it rests formity to the trust, casting the burden of proof upon the cestui que trust. The breach being established, in either case its effect upon the deed is precisely the same. What that effect is, as we have already seen, equity opens a wide door to the injured cestui que trust to determine, by his election. He cannot be forced to treat the conveyance as void, and take the land, or have it secured for him when his right, in possession, accrues; for to do so would deprive him of his right to elect other redress which might secure to him much larger benefits. If the deed is a nullity, the purchaser thereby having no legal or equitable rights under it, this right of election of the cestui que trust would, as we have said, be excluded; for a party cannot ratify or affirm a conveyance absolutely void, conferring no right, legal or equitable, and elect to take other rights, as growing out of it, more burdensome, it may be, to the opposite party. It would require a new contract in such a case to confer any right other than the right to reclaim what the opposite party may have acquired possession of under the void deed, together with such damages as might be legally incident to such wrongful possession. To state another practical case: The deed recites due conformity to the trust. A bill is filed, alleging that the recitals are

upon a presumed intention; from which results the rule that the purchase money must have been paid at the time of the purchase, whereas a constructive trust, like the present, is supported by no such presumption. It is entirely in invitum, and is raised and enforced by a court of equity, as a principle of justice. It has attached to it none of the attributes of an express trust. The purchaser is charged for breaking up the trust, and not because he has agreed to exe. cute it.

In view of these considerations, we are compelled to hold that the legal title passed by the Welsh deeds to Wright and Pierce, and that the remedy of the complainants was alone in equity, upon bill filed in due season. It follows from what has been said that the counsel for the complainants, had they been in season, properly conceived their remedy when they filed the bill in equity. But that bill was properly dismissed by the chancellor, and the dismissal affirmed by this court, because of the great staleness of the demand sought to be made the basis of relief. The court was open to the complainants from 1854, in one case, and 1858, in the other, to obtain the relief they may have been entitled to, or ever could have become entitled to,the identical relief (assuming the same elec

tion) sought by the bill in this case. The the trustee had suffered himself to be disfact that, by the terms of the Falconer trust, seised for a period sufficient to bar him, the complainants could have had no posses- thereby barring all cestuis que trust), ocsory right until the death of Mrs. Robinson, curring during the life of Mrs. Robinson, who was the life tenant, cannot possibly af- could have affected their right of recovery. fect the question. It is unquestionably true These possessory rights, it is manifest, did (for it is the settled rule everywhere, sav- not and could not come into existence until, ing what shall be said of Woodstock Iron Co. as independent, substantive equities, they v. Fullenwider, 87 Ala. 584, and cases fol- should be sued for and obtained in a court lowing it) that one having a legal title en- of equity; and that remedy was open immetitling him to a possessory action upon the diately upon the commission of the breach falling in of a precedent particular estate of trust, to precisely the same extent and efis not affected by any lapse of time, howso- fect as after the death of Mrs. Robinson. ever great, until the particular estate falls A perfect bill filed before her death would in, by which event he for the first time be- have been in the identical words of one filed comes entitled to his action. There can, it after that event. It would not have been would seem, upon principle, and certainly so even necessary to ask, in the bill, for a writ by the great weight of authority, be no dis- of possession; for that could be done by petiseisin of a remainderman having the legal tion to the chancellor after passing the detitle in remainder in himself, until his right cree establishing the complainants' estate of possession accrues; for until then he is and right of possession, suggesting and showwithout remedy of any sort against any tres- ing the death of the life tenant. The suit in · passer or adverse holder, except the right in equity is, for the purpose of acquiring an esequity to stay waste and the like. But here tate which will give a possessory right, enthese complainants were devested of all title forceable by action at law, at the time by Welsh's execution of the trust. Their es- which, by the effect of the grants as they tate was gone. Neither the death of Mrs. are decreed to exist, such right would arise. Robinson nor any other event would or could The power of the chancellor, upon establishhave vested in them any estate whatever ing this estate, on petition, to put the comgrowing out of the muniments of title. If plainants in possession, is purely auxiliary, there was, in the execution of the trust, such incidental,-not the primary purpose of, nor a breach committed by Welsh and his ven- forming a part of the equity of, the bill. dee as is alleged, its effect was, as we have The question of when or on what continshown, to create in the complainants an in-gency the complainants may become entitled dependent, substantive cause of relief for be- to possession cannot possibly concern the ing made whole against the consequences of relief sought by the bill. the breach, to be worked out through the court of chancery according to such recognized equitable right and remedy of redress in such cases as the complainants might, by their bill, elect. Upon establishing the breach, they could have affirmed the sales, and held the guilty parties to a proper accounting therefor, and disposition of the purchase money; or they could have disaffirmed the sales, and, by decree, obtained vacation of the conveyances, and restoration of the estates in the land to the status and condition in which the Falconer trust deed would have left them. It is, then, necessarily true (assuming election of the last-named relief), that the only right in respect of the land which the complainants, at the time of Welsh's execution of the trust, or ever afterwards, either before or after the death of Mrs. Robinson, could have asserted, was this right to sue in equity to obtain an estate, by restoration, by decree, of the original status. This done, and if the trust still remained unexecuted at the death of Mrs. Robinson, her death would have rendered its execution impossible. There would have been no longer necessity for retention of the legal title by the trustee, and the legal estate in fee would have vested in the complainants, upon which they could then have maintained their possessory action, either by petition to the chancery court, in the cause where their title was established, to be let into possession, or by real actions at law, as they might have chosen; and no lapse of time (unless

Let us illustrate by a perfectly plain case: One having (we will say) a vested legal estate in remainder in lands, dependent upon a precedent life estate, is, by fraud and deceit, induced to sell and convey his estate to another, pending the life estate. Here, we observe, his estate is, by his deed, entirely gone, destroyed. But there grows out of its destruction, by reason of the fraud, a right in him, at his election, to confirm the fraud, and sue for damages, in the equitable action of deceit, or, repudiating the transaction, to file a bill in chancery for rescission and restoration to his estate. It is manifest that the remedy chosen is open to him at once, without regard to the life or death of the life tenant. If he elects the remedy in chancery, his object is to get back his title. It matters not when his right of possession may accrue, for, until he is restored to his title by a court of equity, he can never have a right or action of possession at law. His restoration to his estate, established by decree years before his possessory period, is just as available to him, for all purposes, as if so established after that period. The question of the time or event of the possessory right is utterly immaterial. No one would contend that a party thus alleged to be defrauded could lie by for thirty or forty years, either before or after the life estate falls in, and then file a bill to rescind his conveyance on account of such alleged fraud.

The briefs on file contain an ample colla

harshness and injustice of a contrary rule would work untold detriment. Here, the complainants, professing no right but that of an equity, capable at any time within twenty years of enforcement, call upon the respondents to answer and make proof, if they would defend themselves against that equity, alleged to have grown out of transactions in pais, occurring nearly forty years before.

That the complainants' right to file their bill at any time after the commission of the alleged breach of trust was perfect cannot be questioned. A case strongly illustrative (saying nothing of our own decisions cited upon briefs), is that of Wright v. Miller, 8 N. Y. 9, 59 Am. Dec. 438. There a trust deed vested an equitable estate in lands in remaindermen. The trustor and trustee conveyed, in contravention of the trust, under decree of court fraudulently obtained. The remaindermen filed their bill, pending the life estate, to have the fund properly restored and reinvested for their ultimate use, when their right in possession would have accrued, and the relief was granted. Wethink there can be no doubt that the dismissal of the bill was supported by the staleness

The Application for modification of our former opinion in the equity case is granted, so as to conform to the views herein expressed. In Each of the law cases the judgment will be reversed, and the cause remanded.

tion of the authorities on the subject we are
discussing. Though the last Alabama case on
the subject (Lowery v. Davis, 8 So. 79),
seems to commit this court irrevocably to
the much-criticised and doubtful, if not plain-
ly erroneous, doctrine of Woodstock Iron Co.
v. Fullenwider, 87 Ala. 584, yet the integrity
of that decision is by no means essential to
the correctness of the conclusion declared in
this case.
There, as in the two subsequent
cases which followed that decision (Lansden
v. Bone, 90 Ala. 446, and Lowery v. Davis,
8 So. 79), the attempted sale of the rever-
sionary estate was absolutely void. The le-
gal title, according to the muniments, con-
tinued unbroken in the reversioners down to,
and after, the death of the life tenant; and
yet, because (as it was held), the void deed,
professing to convey the reversion, cast a
cloud upon the reversioners' title, which
they could have gone into equity to remove,
and because (as was held), the purchase
money paid by the purchaser at the void sale
of the reversion having gone into the hands
of the personal representative of the deceased
owner of the lands through the medium of the
void sale, and by him applied to the payment
of the debts of such deceased owner, an equit
able estoppel was created upon the reversion-of the demand.
ers, in whom the legal title resided, to claim
the land against the void purchaser without
paying back the purchase money (whether
with or without interest being pretermitted
by the decision), it became the duty of the
reversioners, within twenty years, although
they held the legal title, with no power
whatever to enforce it until their right of
possession accrued by the falling in of the
life estate, to file their bill for a redemption,
so to speak, from the void sale, tendering
to the purchaser the purchase money, and
to have the cloud removed from their title;
and having failed so to sue within twenty
years, notwithstanding the continuance of
the life estate, they were barred to assert
their title after the life estate fell in. Here,
in the case before us, after the trustee exe-
cuted the trust, the remaindermen had no ti-
tle and no possibility of becoming invested
with one, except by suing in equity, to ac-
quire it, based upon the independent cause
of relief conferred by the breach of trust.
It is to this equitable proceeding to acquire
a title that staleness of demand is pleaded.
and to disallow the defense would be to over.
rule that great and invaluable principle of
equity which has stood for centuries, requir-
ing the suitor to be diligent. What conceiv-
able reason can there be for exempting a per-
son from this rule of diligence who sues in
equity to acquire an estate in remainder or
reversion, any more than one suing in equity
to acquire an estate in possession? His de-
cree, when obtained, establishes perpetually
his title, entitling him to maintain his ac-
tion for possession whenever the event en-
titling him to possession transpires; and no
lapse of time after recovery of the decree,
and before the possessory right accrues,
could affect his right to recover possession
upon the happening of the latter event. The

Brickell, Ch. J., not sitting.

Coleman, J., dissenting:

I am aware that any further discussion of the principles involved in this case would not change the result, and I do not proposeto do more than merely to state my position, and the propositions which sustain it.

John Falconer, in 1847, conveyed the lands. in fee to Thomas Welsh, in trust for the sole use and benefit of his daughter, Mary Jane Robinson, during her natural life, and at her death to complainants. By the deed of trust the trustee was given the power to sell and convey said lands on request of Mary Jane Robinson, in writing, and invest the proceeds of the sale thereof in property "to be held subject in like manner to the same uses and trusts hereinbefore stated." Mary Jane Robinson, the life tenant, died in 1889. Within less than a year after her death, the complainants, both by suit in ejectment and by bill in chancery, instituted proceedings to assert their rights under the deed made by John Falconer. It is not pretended that any conduct or word of theirs has induced action on the part of the defendants, or that they have been guilty of anything which authorizes the application of the doctrine of estoppel. It is not pretended that the defendants are entitled to protection asinnocent purchasers. Notwithstanding the provisions of the deed of trust for their benefit, and that no principle of estoppel arises, and that defendants are not innocent pur

chasers, and that plaintiffs instituted pro- | vested in the trustee, but in direct violation ceedings within a year after the termination of that power, did not devest the estate of of the life estate to enforce their rights, the the remaindermen, and that upon the falling decision of this court is that they are with-in of the life estate, under the facts, upon out remedy, either in a court of law or equity. However plausible and specious the reasoning, the conclusion reached demonstrates its unsoundness and injustice. My own opinion is that the deed of the trustee to defendants, showing upon its face that it was not made in accordance with the power

DELAWARE SUPREME COURT.

Mayor, etc., of WILMINGTON, Plff. in Err., | pair and free from dangerous obstructions,

A municipal corporation was always liable for torts in England.

Jones, Neg. $§ 15-18; Lynn v. Turner (1774) 1 Cowp. 86; Russell v. Men of Devon,. 2 T. R. 667.

American law has invariably held munici

ERROR to the Superior Court for New-pal corporations liable for torts.

Jones, Neg. § 19 A; 2 Dill. Mun. Corp. § 966, p. 1179.

An "unconstitutional law" is one which

castle County to review a judgment in favor of plaintiffs in an action brought to recover damages for injuries caused to plain-violates the provisions or principles of the tiffs by defective plates covering a gutter supreme law of the land, or of that Constia footway in the defendant city. tution by which the particular law-making body is governed.