
    John Rogers vs. Samuel A. White.
    1. Trespass Quare Clauses! Fregit. Right of Action. Trustee. Where real estate is settled by a decree of the chancery court, upon a trustee, for the use and benefit of a feme covert, who remains in possession of the premises, such possession of the cestui que trust, is the possession of the trustee. Upon his acceptance of the trust, the trustee instantly becomes vested not only with the right of possession, but in legal contemplation with the actual possession also, and may maintain trespass against a wrong doer having no title, although the decree creating said trust, be technically imperfect, and does not vest him with the absolute legal title.
    2. Chancery. Decree creating Trust. Construction. Where a trust valid in itself, is created by a decree of the chancery court, so inartificially phrased as to vest no legal title to the realty embraced therein in the trustee; sucli deeree should he so construed as to give effect if possible to the purposes of the trust. So where upon a bill filed on behalf of a feme covert, to have certain real and personal property settled upon a trustee for the sole use and benefit of herself and children, excluding the marital right of her husband, and the court declare in an interlocutory deeree, that “ said property ought to be vested in a trustee for the use and benefit of said complainant,” and in its final decree, appoints a “ trustee, to take charge of the property both real and personal belonging to said complainant,” without formally vesting him with the legal title : Held, that said trustee, from the very nature and objects of said trust, may maintain all such actions for injuries effecting the real estate placed in his “ charge,” as requires merely an actual possession for their support, and not a legal title.
    3. Trust. In Exclusion of the Marital Right. Duration. Where an estate is settled upon a trustee for the sole use and benefit of a feme covert free from the use, control or creditors of the husbaud. the interest of the trustee con tinues no longer than the purposes of the trust demand. The object being to protect the property against the marital rights of the husband, upon his death, all the purposes of the trust are accomplished : the wife’s rights become absolute in her as before marriage, and the interest of the trustee is at an end.
    
      4. Boundary. Conventional Line. Parol Evidence. Where, in defining and proving the boundaries of land — a conventional line is relied upon — title must be shown in the parties to the agreement by which such conventional line is established. Parol evidence of such conventional line is admissible only, after legal evidence is adduced that the parties had title to the premises, and therefore a right to malee such agreement.
    PROM KNOX.
    The defendant in error, brought bis action of trespass quare clausum fregit in the circuit court of Knox county, against the plaintiff in error, for alleged injuries done to certain real estate held in trust by the defendant in error, for the use and benefit of Isabella French, The trespass complained of, was cutting and carrying off timber. There was a verdict and judgment in the court below, ( ITyNds, J., presiding,) against Rogers for $17.50, from which he appealed in error to this court. The land upon which the alleged trespass was committed had been devised by the will of the late Hugh L. White to his widow, Ann E. White,,for and during her natural life, with remainder to Isabella, his daughter. Pending' the life estate, Isabella intermarried with W. B. French; and on the 19th of September, 1846, Ann E. White, for a valuable consideration, conveyed her life estate in said land, to Isabella French, “ to her sole and separate use, free from the control of her said husband, and from all liability for his debts,” in which conveyance was also embraced much valuable personal property. On the 22d of March, 1847, and before said Isabella came into possession of said property, she filed her bill, by her next friend, in the chancery court at Knoxville, restraining her said husband from reducing said property into possession, and praying that the same be settled upon a trustee for the sole and separate use of herself and children to the exclusion of the marital rights of her said husband whose large indebtedness and insolvency were alleged in the bill. On the 14th of April, 1848, there was an interlocutory decree made in the cause, ordering an account to be taken, and declaring, that “ all the right, title, and interest of said Isabella, in said property, both real and personal, ought to he vested in a trustee, for the use and benefit of said Isabella and her children.” The final decree was made on the 25th of December, 1848, in which the court “ appoints Samuel A. White a trustee, to take charge of the property, both real and personal, belonging to said complainant and children, and vesting the same in said trustee, for the sole and separate use of said Isabella and her children, to the exclusion of all others.” Isabella French was then placed in possession of said property — and it was during such possession. of the land in question, tbat tbe trespass was committed, for wbicb Samuel A. "White as trustee brought this action. It appeared in proof, that the locus m quo of the trespass was not embraced in the apparent true calls of the plaintiffs paper title for course and distance, but was within his boundary as defined by a certain coTi/oembional Une long before agreed on between those under whom he claimed, and one Houston; the court below allowed evidence to go to the jury as to the existence of the conventional line; among the title papers also, adduced by White on the trial, was a deed from David Nelson to Hugh L. White, reciting the boundary along the land in question as follows: “ Thence northeast with a conventional line agreed upon between said Nelson and Houston, fifty-five poles to a stake in the line of the late William McOampbell’s land,” but no evidence was adduced showing title in Houston at the time the conventional line was agreed on.
    SNeed, Temple, Rogees & Boyd, for plaintiff in error.
    Maynard & Lyon, for defendant in error.
   McKinney, J.

delivered the opinion of the court.

This is an action of trespass quare clausum fregit, for cutting and carrying away certain timber trees. Yerdict and judgment were for the plaintiff in the circuit court, and appeal in error by the defendant to this court.

The first point made in the argument here, involves the right of the plaintiff to maintain the action, on the ground of want of title. The facts upon which this question is raised, are these: Isabella French, wife of William B. French, was the owner of real estate, slaves, and other personal property, devised and bequeathed to her by her father, Hugh L. White. Her husband being insolvent, she filed her bill, before the reduction of any of the property into her possession ■ — ■ to exclude his marital.right, and to have the same, both real and personal, settled to her separate use. The interlocutory decree made in the cause, declares that “all the right, title, and interest of said Isabella French, in and to said property, real and personal, ought to be vested in a trustee, for the use and benefit of said Isabella and her children.” But the final decree, in terms, merely constitutes and “appoints Samuel A. White a trustee to take charge of the property both real and personal belonging to sand complavnamtf without formally vesting him with the legal title.

It is argued for the plaintiff in error, that the trustee has no such interest in the real estate, under this decree, as will entitle him to maintain the present action, the absolute legal title being in Isabella French.

The final decree is inartificial, and certainly does not vest the trustee with any legal title, so far as the real estate is concerned. But the. decree should be so construed, if possible, as to carry out the puipose of the trust: and upon a proper construction thereof, we think, the trustee is vested with such an interest as is sufficient to entitle him to maintain the present suit.

The authority to “ take charge ” of the property, real and personal of the feme covert, is unquestionably a full authority to take the property into his immediate and actual possession, and to hold the possession in subservience to tbe purposes of tbe trust. Upon bis acceptance of tbe trust, tbe trustee instantly became vested not only with tbe right of possession, but, in legal contemplation, with tbe actual possession also; for although tbe feme covert may have remained in tbe occupation of tbe premises, still tbe possession, in law, was tbe possession of tbe trustee. And possession of part' being possession of all tbe land embraced within tbe proper boundaries of tbe deed or grant, and actual possession being sufficient to support trespass against a wrong doer, having no title, it follows that tbe objection, upon this ground, cannot avail tbe plaintiff in error. If this were not so, then no action at law could be maintained by any one for tbe alleged trespass. By tbe decree, tbe interest of tbe husband is excluded; therefore be can maintain no action, either separately or jointly with bis wife; nor can tbe wife sue in her own name, because of her coverture. Of necessity, therefore, from the very nature and objects of tbe trust, it would seem to result, that tbe trustee may at least maintain all such actions, for injuries affecting the real estate placed in bis charge,” as require not a legal title, but merely an actual possession for their support. How it be' in respect to actions founded upon legal title, is a question which, upon tbe facts in this record, we are not called upon to decide.

Erom tbe nature of this particular trust it follows, of course, that tbe interest of tbe trustee continues no longer than the purposes of its creation demand. Tbe object being to protect tbe property against tbe marital rights of tbe husband, upon bis death all tbe purpose of tbe trust are accomplished; tbe wife’s right becomes absolute in her, as before tbe marriage; and tbe interest of tbe trustee is at an encl. But the record being silent as to whether the husband be living or dead, we must talce it, for the present, that he is still alive, upon the legal presumption in favor of the continuance of life until the contrary is shown; though, as alleged, the fact be otherwise.

2. It is argued that the court erred in admitting evidence to the jury of the supposed conventional line alleged to have been made between' Hugh L. "White (or those under whom he derived title) and Bobert Houston. This objection we think is well founded. The plaintiff in the action seeks to depart from the apparent true calls of his title deeds for course and distance, and to recover for an alleged trespass to land, which prima, faoim, is hot embraced by the calls thereof; and this by force merely of a conventional line, said to have been agreed upon and established between those under whom he claims, and Houston. Without noticing other objections not urged in the argument here, we place our decis-' ion upon the ground, that, if such conventional line were in fact made, it is not shown by any competent evidence that Houston, at the time, had any title to, or interest in the adjoining land, between which and the land of White, the supposed conventional line was to form the boundary; and without such title or interest, he could make no compact or agreement in respect to the boundary, binding on White or any other person. 9 Humph., 75.

The effect of the testimony excepted to is, to establish a title • in Houston by parol evidence, and clearly this is not allowable.

The plaintiff’s recovery cannot be supported upon the ground, that the plaintiff’s possession was commensurate with tbe limits of bis paper title, and tbat for a long-period tbe conventional line in question bad been claimed and recognized as tbe boundary. His legal possession of tbe wild, unenclosed portion of. bis tract of land, was ' limited by tbe true boundaries of bis title papers. Here tbe proper boundary is tbe very point in dispute ; and without tbe establishment of the conventional line claimed by tbe plaintiff, it would seem from tbe aspect in which tbe case is presented in this record, tbat tbe locus in quo is not covered by bis title..

Tbe judgment must be reversed, and a new trial awarded.  