[Durr, et al. v. Wilson, et al.]

W. Wilson, who was the husband of Amanda Wilson, one of the daughters of the testator Clayton. It is conceded that Wilson paid for the land with his own money. On the 1st day of April, 1847, he conveyed the land to P. D. Sayre, as trustee. The consideration re

cited was $1,841, "received by me from P. A. Clayton, acting executor of the last will and testament of George R. Clayton, deceased, and which said sum of money belonging to my wife, Amanda L. Wilson, as her sole and separate estate under the last will and testament of the said George R. Clayton, proven and established in the Orphans Court of Montgomery county and recorded * * and which said sum of money has been applied by me to my own use," etc. The deed was upon the trust that Sayre should apply the rents, issues and profits "unless disposed of under the power hereinafter given' to the sole and separate use of Amanda L. Wilson during life, free from the debts of the husband, and upon her death "if the said lot or parcel of land should not be sold under the power hereinafter specified," then to convey the land to such child or children and the descendants of such child or children as the said Amanda L. Wilson might have living at the time of her death, to be equally divided among such children; should she have more than one child living or the descendants of children living at her death, the descendants of any one child to take the portion to which its deceased ancestor would have been entitled had he or she lived until the death of the said Amanda L. Wilson.

The conveyance contained the following power of disposition: "And upon the further trust and confidence that the said Philemon D. Sayre shall and may at any time during the life of the said Amanda L. Wilson, by the direction and request of said Amanda L. Wilson, testified by any writing under her hand and seal, make sale or convey in exchange for or in lieu of other lands and property, any part or the whole of said lot or parcel. of land hereby and herein conveyed, and sell said lot or parcel of land or any part thereof for such price or prices in money as to the said Amanda L. Wilson should or shall seem reasonable, and should said Philemon D. Sayre sell the whole or any part of said lot or parcel of land for money, then to invest the money arising from the sale of said lot or parcel of land in such other estate

[Durr, et al. v. Wilson, et al.]

or property as the said Amanda L. Wilson may by her writing and seal appoint and select; and should said Philemon D. Sayre exchange said lands for any other property or estate under the power herein granted, or purchase any other property or estate under said power, then to apply the rents, issues and profits of the estate or property so acquired to the same uses and trusts as he would apply rents, profits and issues of said lot or parcel of land hereby conveyed should the same not be sold or exchanged under the power given in this deed." And upon the trust that said Philemon D. Sayre shall, upon the written direction and request of the said Amanda L. Wilson, testified under her hand and seal, make sale of or exchange the estate or property acquired from or by or with said lot or parcel of land, or any part thereof, and reinvest the proceeds of the same as often as the said Amanda L. Wilson may, under the power and in the manner herein specified, select and appoint, the said Philemon D. Sayre paying the rents, issues and profits and gains of said lot or parcel of land to said Amanda L. Wilson, or paying rents, issues or profits of any other land, estate or profits which may be acquired under the power herein contained to the said Amanda L. Wilson during her natural life, her receipt being a sufficient acquittance and discharge to said Philemon D. Sayre for said rents, issues and profits.

Sayre died on the 28th day of April, 1852. Joseph W. Wilson was duly appointed as his successor by the chancery court. On the 29th day of May, 1869, said Wilson, the substituted trustee, and his wife the said Amanda, "in strict compliance with the terms of the trust deed conveyed the lot in controversy to Clayton Wilson with warranty by said Wilson." On May 31st, 1869, Clayton Wilson mortgaged the lot to the Montgomery Mutual Building and Loan Association to secure a debt contemporaneously contracted. The mortgage contained a power of sale, and authority to the mortgagee to purchase. It was duly foreclosed April 17th, 1871, and the mortgagee became the purchaser. Under proceedings afterwards had in the city court of Montgomery, the affairs of said Building and Loan Association were settled, and its assets ordered to be sold for distribution. Pursuant to said decree said lot was sold June 9th, 1890, and the complainants, John W. Durr and Judah T. Moses, became the purchasers for value.

[Durr, et al. v. Wilson, et al.]

The bill in this case was filed under the act of December 10th, 1892, to compel the determination of claims to real estate. Mrs. Amanda L. Wilson and her children and the children of one of her sons, who had died, were made defendants to the bill. Mrs. Wilson died pending the suit and it abated as to her. There were decrees pro confesso against all of the defendants except Eliza M. Williamson, who was a daughter of said Amanda L. Wilson. She answered the bill, setting up the trust in the will, and insisting that the consideration recited in the deed from Joseph W. Wilson to Sayre disclosed that the lot was conveyed in repayment of trust funds in which her mother, Amanda L. Wilson, had only a life estate, and that this fact impressed upon the land the trusts of the will in favor of said Amanda, as life tenant, and in favor of said Eliza, as one of the children of the said Amanda. After interposing this answer Mrs. Williamson died, and the cause was revived against her children who, on coming in through their guardian ad litem, adopted her answer. The court rendered a decree holding that the lot in controversy was impressed, as claimed in the answer, with the trusts of the will, and that the appellees were entitled thereto as remaindermen under the will.

No claim can be asserted by appellees to the lot other than under the trust deed from Joseph W. Wilson, for "it is admitted that Wilson paid for the land with his own money." No portion of the trust estate under the Clayton will entered into its purchase. In the absence of any investment of the trust funds in the purchase of the property, neither the life tenant nor the remaindermen had any lien whatever upon the property itself, and could not, of course, have compelled its conveyance. As to the trust funds which Wilson had used his liability was that of a mere debtor, and no trust could have been fastened by the life tenant nor remaindermen upon the lot. Farris v. Stoutz, 78 Ala. 133; Ellison v. Moses, 95 Ala. 228; Goldthwaite v. Ellison, 99 Ala. 497; Goldthwaite v. Janney, 102 Ala. 44; Milner v. Stanford, 102 Ala. 280.

In Farris v. Stoutz, supra, where a pecuniary legacy had been converted, the court held that as the fund could not be traced into any property, the only remedy of the remaindermen was to file their claim as ordinary cred

[Durr, et al. v. Wilson, et al.]

itors against the estate of the person who had converted the fund.

Joseph W. Wilson was absolute owner of the property, and as an incident of his absolute ownership had the right to dispose of it as his pleasure, interest or even caprice might dictate.-Pope v. Wilson, 7 Ala. 694; Burrill on Assignments, § 9. Having the absolute right of disposition, Wilson conveyed the property to Sayre, as trustee for Amanda L. Wilson, wife of the grantor, with remainder to such child or children and the descendants of such child or children as the said Amanda might have living at her death, etc. But the conveyance contained a power of disposition authorizing the trustee, by the written direction and request of said Amanda L. · Wilson, to exchange or sell the lot, and in the event of a sale for money to reinvest the proceeds upon the same trusts declared in the deed; and it is declared that the rights of the remaindermen should attach only in the event that the lot should not be sold under said power of disposition. The power of sale was as much a constituent part of the deed of conveyance as any other of its terms, and when duly exercised by the trustee, as was the case in this instance, conveyed the entire legal and equitable estate to the purchaser. Holding under the deed and not otherwise, the beneficiaries must take according to its provisions. They cannot affirm provisions supposed to be beneficial to them and disaffirm others in the same instrument. The grant must be accepted or rejected in its entirety. It is not permissible to claim both under and against the conveyance.-Dillon v. Parker, 1 Swanston, 359 and notes; 2 Perry on Trusts, § 596; Hatchett v. Blanton, 72 Ala. 423, 433; Sloan v. Frothingham, 72 Ala. 589.

It is not insisted that the purchaser under the power was responsible for the application of the money according to the trusts. Both at common law and by statute (Code of 1886, § 1843), the person making payment to the trustee was relieved of all responsibility in this respect, unless such purchaser colluded with the trustee and knew of his intention to waste or mismanage the fund. Confessedly the present case does not fall within the exception.

There is nothing in the case of Locb v. McCullough, 78 Ala. 533, in conflict with the views we have announced.

[Durr, et al. v. Wilson, et al.]

That case is not inconsistent with the authorities we have cited, which hold that a debtor like any other person may dispose of his property as he sees fit. That was a bill filed to foreclose a mortgage upon property conveyed by the husband to the wife through the intervention of a trustee; and the question was whether, by the terms of the conveyance, the estate of the wife was statutory or equitable. In the opening sentence of the opinion it is declared that the deed was "absolute in terms." It contained no power of sale nor provision for reinvestment. It was also expressly held that the grantor intended to create a statutory separate estate and not an equitable one. In holding, therefore, that the mortgage was void under the statute, the court enforced the intention of the grantor as declared in the deed, and did not nullify it as is here attempted. In that case it required no elimination of any of the terms of the deed to reach the conclusion announced by the court, while in this case in order to sustain the contention of the appellees, we must eliminate absolutely from the deed the provision authorizing a sale and reinvestment. Such construction would result in making a contract which the grantor, having the full power of disposition of his property, had declined to make.

The decree of the city court was not in accordance with these views and must be reversed, and a decree here rendered that the complainants have a good and indefeasible estate in the land in dispute as against the defendants, and that the defendants have no right to nor estate therein. The costs of the court of chancery must be paid one-half by the adult defendants against whom decrees pro confesso were not rendered and one-half by the complainants. The costs of appeal in this court and in the chancery court must be paid by the adult appellees, litigating in the court of chancery. Reversed and rendered.