
    KING & CO. vs. HILL.
    1. A cestui que trust of personal property cannot interpose a claim under our statute to try the right of property.
    ERROR to tbe Circuit Court of Madison.
    Tried before tbe Hon. George D. Sbortriage.
    An execution in favor of tbe plaintiffs in' error was levied on certain slaves as tbe property of James "W". Hill, tbe defendant in execution. A claim was interposed by tbe said James "W". Hill in tbe' name of bis infant daughter, Mary Hill, and as ber next friend, and bond given to try tbe right of property agreeably to tbe statute. On tbe trial of tbe claim suit tbe claimant introduced two deeds as evidence, each of wbicb conveyed a part of tbe negroes in controversy to tbe said James W. Hill, as trustee, for tbe sole and separate use and benefit of bis said infant daughter, Mary Hill. One of these deeds directs tbe trustee “to take charge of, hire, manage, control and direct” tbe slaves conveyed by it, “in that way wbicb tbe trustee may deem most beneficial for bis said daughter.” Tbe other provides that tbe trustee “shall take possession of tbe said slaves, and apply all profits arising from them and their future increase to the exclusive use, benefit and support of tbe said Mary Hill.” Tbe plaintiffs objected to tbe admission of each one of these deeds, but their objection was overruled, and they excepted. Tbe plaintiffs asked the court to charge tbe jury “that said deeds, if valid, conveyed tbe legal title to tbe slaves in controversy to the said James W. Hill, in whose name alone tbe claim to said slaves could be made or sustained; and that upon said evidence tbe jury could not find tbe issue for tbe claimant.” This charge tbe court refused to give, but charged tbe jury “that tbe beneficial interest being in Mary Hill, they might find for tbe claimant,” to wbicb plaintiffs excepted.
    Tbe admission of tbe deeds, tbe refusal to charge as requested, and tbe charge given are assigned for error.
    0. G. Olay, Jr., for plaintiffs in error.
    1. Tbe deeds from "Williamson and Thompson conveyed tbe legal title in tbe slaves to James W. Hill, tbe trustee. He was to take possession and keep it, at least during Mary’s life. Consequently tbe deeds did not sbow snob title in tbe claimant as made them admissible evidence under tbe issue. Tbe proof must correspond with tbe allegations of tbe pleadings. Tbe claimant alleged substantially tbat tbe property was bers: while tbe deeds showed that it was James W. Hill’s. In regard to trust property, the legal title is in tbe trustee, who may, at law, recover tbe property from tbe cestui que trust. Tbe cestui que trust cannot sue at law.' — Gunn, Trustee v. Barrow, 17 Ala. Rep. 743; Marriott & Hardesty v. Givens, 8 ib. 694; Bissell & Carvillc v. Lindsay et al 9 ib. 162; 14 Conn. 445 ; 8 Leigh, 604,
    Where property is conveyed in trust for others, tbe trustee is regarded at law as tbe legatee, and tbe cestuis que trust are not necessary parties to a settlement of tbe administration.— Gaunt & Wife v. Tucker’s Ex’rs, 18 Ala. Rep. 27.
    2. In a claim suit tbe claimant cannot sbow an outstanding title in a stranger to defeat tbe execution. — Foster v. Smith, 16 Ala. Rep. 192; Erow v. Downman, 11 ib. 880; McGrew v. Hart, 1 Porter, 175.
    D. C. Humphreys, contra:
    
    Tbe deeds were properly admitted in evidence, their execution having been duly proven. Under them Mary Hill has a present right of present enjoyment. Tbe right of property is in her by tbe terms and provisions of tbe deeds, for she is entitled to tbe sole use of tbe hires and profits of tbe slaves, and this use and benefit draws tbe right of possession, which right of possession gives tbe right of property. — Cook & Kennerly v. Smith, 12 Ala. Rep. 42.
    In Strode et al. v. Clarke, 12 Ala. Rep. 621, tbe trial of tbe right of property was in tbe name of tbe infant by prochein ami. In McGrew v. Hart, 1 Porter, 175, tbe property belonged jointly to tbe claimant and another, and it was determined tbat when tbe claimant possesses an immediate interest in tbe property, this would authorize tbe interposition of bis claim to sbow tbat defendant in execution had none.
    
    In Graham v. Lockhart, 8 Ala. Rep. 9, it was held tbat tbe bond, required in a claim for a trial of tbe right of property, may be given by one beneficially interested in the property. The fact that there is a trustee named in the deeds, will not prevent the beneficiary, wbo bas tbe sole right to the use, enjoyment and benefit of the property, from availing herself of the provisions of the act, which was designed and intended for the speed}'' re-possession of property taken from its rightful owner. Suppose the trustee unwilling or unable to give bond for the trial of the right of property, surely the infant is not to be driven to the tedious and expensive remedy of a suit in equity.
   DARGAN, C. J.

The sole question presented by the bill of exceptions is this: can the cestui que trust of personal property interpose a claim under our statute to try the right of property ? I am fully satisfied that he can not. A court of law can look alone to the legal title- — it cannot take cognizance of a trust; and looking alone to the legal title in the case before us, we find it in James "W. Hill — not in the claimant ; therefore her claim cannot prevail.

It has however been contended, that the previous decisions of this court warrant the ruling of the Circuit Court, and we are referred particularly to the case of Carleton & Co. v. Banks, 7 Ala. Rep. 32. But upon an examination of that ease it will be found, that the slaves were conveyed to a trustee, with directions in the deed, to permit the beneficiary to have and retain the possession of them during her natural life, and to have and enjoy the profits thereof; and in pursuance of this deed, it appeal’s that the slaves had actually come into the possession of the beneficiary and her husband, before they were levied on, and the claim was put in by the trustee. The court held that the deed did not create a separate estate in the wife, and that as the slaves were in the actual possession of the husband, they were liable at law for his debts. This is the substance of the whole case, and I fully agree with the court in the conclusion to which they came; though I admit that there is language used in the opinion delivered in that case, which, if not confined to the facts of it, would seem to hold doctrine which I could not sanction.

In the case before us however, the record expressly informs us that James W. Hill, the trustee, was in possession of the slaves at the time of the levy, and neither of the deeds directs him to deliver the slaves to the claimant, or to permit ber to have the possession of them. Under these circumstances, if we were to hold that Mary Hill, the claimant, had the legal title, we should break down the title of the trustee before the trust was executed. This no court can do, without a total disregard of the well settled rules of law.

I have examined all our decisions — I do not think any of them have escaped my search — and I have found none that countenance the idea that a cestui que trust can interpose a claim to property, and try the right at law, in his own name ; but on the contrary, they seem to indicate the settled opinion of the court, that the claimant must show in himself a legal, and not a mere equitable title. In the case of Robinson & Caldwell v. Mauldin, 11 Ala. Rep. 477, it was said, that “ when a trustee refused to make the affidavit, and take the steps necessary to the trial of the right of property, the cestui que trust may resort to equity to enforce the trust and protect his rights. And it it is well settled, that a mortgagee or trustee in a deed to secure debts, who has not the actual possession of the property, cannot interpose a claim before the law day of the deed, to try the right of property at law; and if the property be levied on whilst in the possession of the grantor, and before the deed is perfected, the mortgagee or trustee must resort to a court of equity to- protect his rights;” thus showing clearly, to my mind, that this court has never countenanced the doctrine, that one who has an equitable title alone can interpose a claim in his own name, and succeed by showing a legal title in another for his use.

It is better to hold on to the plain landmarks that separate the jurisdiction of a court of law from that of a court of equity, than to overstep them to reach the justice of particular case; and we must hold that the court erred, as well in refusing the instruction prayed, as in the charge that was given.

Let the judgment be reversed, and the cause remanded.  