
    Robinson et al. v. Pierce et al. and Stone v. Robinson et al. and Pierce et al. v. Robinson et al.
    
      Bill in Equity to Enforce a Trust in Real Estatej and Actions of Ejectment.
    
    1. Trusts and trustees; estate acquired by trustee. — A trustee, irrespective of tbe estate tlie instrument purports to convey, takes under sucn instrument that quantum of the legal estate which is necessary to discharge the declared powers and duties of the trust and no more and no less.
    
      2. Same; same; legal estate passes into cestui que trust when trustee ceases to be active. — Whatever may be the limitations imposed by the instrument creating a trust, and whatever es- ; tate the trustee takes in the incipiency of the trust, the legal estate in the trustee is divested out of him and passes into the cestui que trust, upon.the instant the duties and powers of the trust, from any cause whatever, cease to be active or cease to require the legal title in the trustee.
    S. Same; same. — A power given to a trustee by the terms of the instrument creating the trust, to sell the estate in fee, invests the trustee with the legal title in fee; and this is true, even where the trust to sell is on a contingency.
    4. Same; same; when legal estate conveyed. — Where an estate is given to a trustee in fee upon trusts that do not exhaust the whole estate and a power is super-added which can only be exercised by the trustee conveying in fee simple; the trustee acquires a fee simple title to the estate; and upon a conveyance by the trustee the estate so conveyed will be sustained by the fee in the trustee, and not by the mere power conferred by the instrument creating the trust.
    5. Same; same; purchaser from trustee acquires legal title.- — Ai common law the legal estate in the hands of the trustee has precisely the same properties, characteristics and incidents as if the trustee had been the absolute beneficial owner, and .being invested with the legal title all conveyances by the trustee, whether to an innocent purchaser or not, or whether in contravention of the trust or not, operate upon the legal title and vest it in the grantee.
    6. Same; same; rights of cestui que trust enforceable in equity. Since at common law a trustee is invested with the legal title to the trust estate and all conveyances by him, whether in breach of the trust or not, operate upon the legal title invested in the grantee, his conveyance is, therefore, valid at law, and the rights of the cestui que trust upon a breach of the trust . by the trustee, can only be protected by resort to a court of equity to compel the grantee to respect and execute the trust as the original trustee should have done.
    7. Same; same; same; case at bar. — Where land is conveyed in trust for the benefit of the gl-antor’s daughter for life, with remainder to cez’tain of her children, and the trustee is given, by the terms of the instrument, the power to sell said lands on the request of the life tenant in writing, and to invest the proceeds of said sale in property to be held in the same manner as that conveyed, a conveyance executed by said trustee, though infected with palpable breaches of trust apparent upon the face of the conveyance itself, is, in a court of law, a valid execution of the trust, passing the legal title in fee to the premises to the grantee, and the only remedy of the beneficiaries of the trust for redress of the breaches of the trust committed by the trustee and his vendees, is resort to a court of equity.
    8. Same; same; right of grantees to maintain and defend action of ejectment. — A conveyance executed by a trustee, though infected with breaches of the trust apparent upon the face of the conveyance itself, is a valid execution of the trust, passing the legal title in fee to the premises to the grantees, upon which they can maintain or defend an action of ejectment.
    9. Same; same; when right to maintain hill accrues. — Where land is conveyed in trust for the benefit of a life tenant with remainder over to heirs of the life tenant, and in the instrument creating the trust the trustee is given the power to sell, upon the written request of the life tenant, and invest the proceeds of said sale in property to be held under the same trust, ix the trustee in the execution of the power of sale makes a conveyance of the land, which is in breach of the trust, such conveyance passes the legal title in fee, and the right of the remaindermen to resort to a court of equity to protect their interest and to compel the grantee to respect and execute the trust as the original trustee should have done, accrues immediately upon the commission of the breach of trust; and this is true, even thougn the life estate was not terminated by the death of the life tenant.
    10. Same; same; same; limitations of actions. — Where a trustee, in breach of a trust sells lands which were conveyed to him for the benefit of a life tenant, with remainder over to the heirs of the life tenant, the remaindermen’s right to maintain a bill for the establishment of a trust accrues at once, and if they fail to seek redress in a court of equity for forty years after the conveyance was made by the trustee, the right to do so is barred; and this is true, even though the life tenant dies within the year prior to the filing of such bill.
    (Coleman, J., dissenting, holds that the deed of trust of a trus- ' tee, showing upon its face that it was made in dix’ect violation of the power vested in the trustee, does not divest the estate of the remaindermen, and that ;upon the falling in of the life estate, the remaindermen are entitled to assert and recover the estate given to them by the grantor in the deed of trust; and that the statxxte of limitations does not begin to run against the remaindermen until the termination of the life estate.)
    
      Appeal from the Chancery Court of Montgomery.
    Heard, before the Hon. John A. Foster.
    Appeals from the Circuit Court of Montgomery.
    Tried before the Hon. John H. Tyson.
    ■ The first of these cases was a bill filed by the appellants against the appellees; and the two other cases were actions of ejectment brought by the complainants in said bills against the defendants in the respective suits. In the chancery suit an appeal was taken from the decree of the chancellor holding that the complainants were not entitled to the relief, and ordering the bill dismissed. The- chancery suit was pending in this court, on application for rehearing, at the time of the institution of the'ejectment suits; and subsequently appeals were taken in the ejectment suits from judgments rendered therein in favor of the plaintiffs, respectively. The same questions are involved in each of the suits, and they are submitted in this court together. The facts of the case are sufficiently stated in the opinion.
    Fettus & Pettus, W. S. Thorington, Alen T. London and Pitares Coleman, for Stone and Pierce.
    1. When real estate is conveyed by deed, will, or mortgage, and poAver is given to the grantee to sell and convey, a fee in the real estate so conAreyed is thereby vested in such grantee. In other words, the legal tifie passes by such conveyance. This, for the obvious reason, that to convey a fee, the grantor must himself be the owner of a fee. No one can convey a. greater legal title in lands than he himself possesses. — Blagrave v. Blagrave, 4 Exches. 549, 568; Doe ex Dem. Keen v. Walbank, 2 B. & Adolph. 554, 562; Watson v. Pearson, 2 Exch. 581, 594; Shaw v. Weigh, 2 Strange, (798) 801; Gibson v. Lcl. Montforcl, 1 Yes. Sr. 484; Watkins v. Frederick, 11 Ho. of L. 358; Chamberlain v. Thompson, 10 Conn. 243; Fisher v. Fields, 10 Johns. 505; Cleveland v. Kallett, 6 Cush. 403; Kaiokins v. Chapman, 36 Md. 83; Spessard v. Rohrer, 9 Grill. 261; Huckabee v. Billing sly, 16 Ala. 414; 1 Perry on -Trusts, §315; 18 Amer. & Eng. Encyc. of LaAV, 904 and note 1; Carrigan v. Drake, 15 S. E. Rep. 341; Goodrich v. Proctor, 1 Gray (Mass.) 569. It is unimportant that the power of disposition is contingent or discretionary. The legal title still vests; — Gibson v. Lord Montford, 1 Yes. Sr. 484, 490-91; Levan on Trusts, (3d Am. ed.), p. 250. This author says: “A trust to sell, even on a contingency, confers a fee simple as indispensable to the execution of the trust.” Even a mortgage, with poAver of sale, vests the legal fee in the mortgagee. — Welsh v. Phillips, 54 Ala. 309, 314; Toomer v. Randolph, 60 Ala. 356; Slaughter v. Swift, 67 Ala. 496; Farris v. Houston, 74 Ala. 162, 169; Garland v. Watson, lb. 323; Coffey v. Hunt, 75 Ala. 236; Kelly v. Longshore, 78 Ala. 203; Richardson v. Dunn, 79 Ala. 167.
    2. The legal title being in the trustee, passed by his deed (Mrs. Robinson concurring by joining in the deed) to the purchaser Wright. This is none the less so because the purchase money Avas paid to Mrs. Robinson instead of the trustee. For it is thoroughly settled that a conveyance from the trustee will pass the legal title, although made in breach of the trust. In such case the purchaser becomes charged Avith the trusts by construction, and the remedy of the cestui que trust is, not to recoArer the land, but to charge it in the hands of the grantee by appropriate proceedings in equity. The cestui que trust is as poAverless in a court of law after a conveyance, as before; for no change is made that invests him with the legal estate; and it is only the legal estate of Avhicli a court of law can take cognizance. Huckabee v. Billingsley, 16 Ala. 414; Danoson v. Ramscr, 58 Ala. 573; Milhous v. Dunham, 78 Ala. 48; Hairs-ton v. Dobbs, 80 Ala. 589; Gale v. Messing, 20 Me. 461; s. o. 64 Amer. Dec. 197; May v. LcClaire, 11 Wall. 217; Canoy v. Troutman, 7 Ired. L. (N. C.) 155, (action of ejectment); Dawson v. Hayden, 67 111. 52, (action of ejectment); Graham v. Anderson, 42 111. 231; Reese v. Allen, 5 Gilm. (111.) 231; Bank of U. S. v. Binning, 4 Crunch G. G. 81; Kostcr v. Burke, 81 111. 436; Hannibal cGc. R. R. Co. v. Green, 68 Mo. 177; 1 Perry on Trusts, ■§328; 2 Perry on Trusts, §814; Stall v. City of Cincinnati, 16 Ohio St. 169, 177.
    3. But the conveyance affects materially the equitable rights of the cestui que trust or remainderman. The original trustee, stands discharged, except as to accountability for the breach. The trust, which before the conveyance, had been an express trust, remains no longer an express trust. It is changed into a trust by construction, in the hands of the purchaser. As regards the right to enforce it, it remains the same; but the changed character of the trust, changes the time within which it must be enforced. Against the trust while it was express, the statute of limitations did not run, and the doctrine of prescription did not apply. But both the statute and prescription ■ may be invoked by the purchaser — the constructive trustee, even as against.persons, who, but for the sale, would have been remaindermen. — Townsend v. Warren, 1 Br. C. C. 554. Bonny v. Ridgard, 1 Cox, 145, 149; Bechford v. Wade, 17 Ves. 87, 93; Soclcey v. Sochey, Pr. Or. 518; Collard v. Hare, 2 Rom. 675; Oholmondelay v. Olinton, 2 J. & W.190; Atty. Gen. v. Fishmongers Go., 2 Beav. 588; s. c. 5 M. & Or. 15; And/rew v. Rigley, 4 Bro. C. C. 124, 135; Portloch v. Gardner, 1 Hare, 504; Lewin on Trusts, (2 Am. ed.), p. 580. In the last citation it is said: “It is a well known rule that as between cestui que trust and (the trustee of an express) trust no iength of time is a bar; for, from the privity existing between them, the possession of one is the possession of the other, and there is no adverse title. It has hence been argued, that as the person into whose hands the estate is followed is also, by construction of law, a trustee, the cestui que trust is entitled to the benefit of the rule, and is not precluded by mere lapse of time from establishing his claim. But the authorities to the contrary are clear and express, and can not leave a doubt.”
    “It is certainly true,” said Sir W. Grant, “that-no time bars a .direct trust; but if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust at any distance of time after the facts and circumstances happened out of which it arises, I am not aware that there is any ground for a doctrine so fatal to the security of the property as that would be; so far from it, that not only in circumstances where the length of time would render it extremely difficult to ascertain the true state of the fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would have originally been given upon the ground of constructive trust, it is refused to the party who, after long acquiescence comes into a court of equity to ask that relief.” — Beckford v. Wade, 17 Yes. 97.
    To summarize: 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. R., 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. The proof of this is made manifest by the indisputable proposition, that if Mrs. Robinson, after receiving the money, had turned It over to Welsh, or, if she had procured it to be invested in other property on like trusts, no one wopld deny that Wright’s title would thereby be made impregnable before any tribunal. And yet, such could not.be the effect, if the deed were void, or inoperative in its inception.. An inoperative deed can not be converted into a transfer or conveyance of the legal title by extrinsic matters in pais. The effect of the payment of the purchase money to Mrs. R. instead of Welsh was not to prevent the operative effect. of the deed as a transfer of title. Its wdiole effect was to fasten a charge and implied trust on the property for the amount of the purchase price, $3,000, improperly diverted from the purposes of the express trust. And Wright, having participated in the misappropriation of the funds, received and held-the title of the property subject to that charge — an implied trust. Any one succeeding to his right, can occupy no higher ground than he stood on, in consequence of the notice his deed furnished, of the improper payment 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 ran at that time. The present actions are, therefore, barred. Rhodes v. Turner, 21 Ala. 210; Gantt v. Phillips, 23 Ala. 275; Lay v. Lawson, 23 Ala. 377;Barnett v. Torrence, 23 Ala. 463; Harvey v. Thorpe, 28 Ala. 250; McArthur v. Carrie, 32 Ala. 75; Milton v. Haden, 32 Ala. 30; Blackwell v. Blackioell,' 33 Ala. 57; Wyatt v. Scott, 33 Ala. 318; Austin v. Jordan, 35 Ala. 642; Roundtree v. Brantley, 34 Ala. 551; 'Nelson v. Goree, 34 Ala. 580; Harrison v. Heflin, 54 Ala. 552; Goodioyn v. Baldwin, 59 Ala. 127; Fleming v. Gilmer, 35 Ala. 62; Harrison v. Harrison, 39 Ala. 489; Phillippi v. Phillippi, 61 Ala. 41; Molton v. Henderson, 62 Ala. 423; Marston v. Rowe,. 39 Ala. 722; Worley v. High, 40 Ala. 171; Baker v. Pruitt, 64 Ala. 551; Garrett v. Garrett, 69 Ala. 429; White v. Hutchings, 40 Ala. 253; 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; Gosson v. Ladd, 77 Ala. 223; Ware v. Curry, 64 Ala. 274; Holt v. Wilson, 75 Ala. 58; Smith v. Gillam, 80 Ala. 296; Long v. Parmer, 81 Ala. 384; Bozeman v. Bozeman, 82 Ala. 398; Woodstock I. Co. v. Fullemoider, 87 Ala. 584; Ross v. Goodtoin, 88 Ala. 390; Duncan v. Williams, 89 Ala. 341; Werborn v. Austin, 82 Ala. 498; Davis v. M. cG O. R. R. Co., 87 Ala. 390; Lansden v. Bone, 90 Ala. 446; Knabe v. Burden, 88 Ala. 436; Semple v. Glenn, 91 Ala. 245; Lowery v. Davis, 8. So. Rep. 79; Johnson v. Johnson, 5 Cow. 74; Bradstreet v. Clarke, 12 Wend. 602; Andrews v. Sparhmok, 13 Pick. 400.
    But there is the highest authority for another doctrine which is fatal to the complainants, whether they sue at law or in equity; and this, without reference to the statute of limitations or prescription.
    The only infirmity alleged to exist in the conveyance from the trustee and Mrs. Robinson, is that the purchase money was paid to the life tenant, Mrs. R. This, it is claimed, ivas a breach of the trust.
    Where the purchaser has 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 tbe conveyance. In such case, and after a long lapse of time, during which all the parties to the transaction have died, the courts will treat the payment as good, on the idea that the purchaser had the right to presume that some arrangement existed between the trustee and the person receiving the money, for reinvestment consistently with the trust. — Norman v. Totone, 130 Mass. 52; Hope v. Liclclell, 21 Beav. 183, 202; Townsend v. Warren, 1 Jones & Lat. p. 221 (a); Bowen v. Evans, 2 Hof. L. Rep. 257; Code of Ala. §1843; Bonny v. Bid-yard, 1 Cox, 145, 149; Sockey v. Sockey, Pr. Ch.' 518; Collard v. Hare, 2 Rom. 675; Oholmondeley v. Clinton, 2 J. & W. 190; Atty. Gen. v. Fishmongers Co. 2 Beav. 588; s. c. 5. M. & Or. 15; Portlock v. Gardner, 1 Hare, 594; Ashton v. Atlantic Bk., 3 Allen, 217.
    Gunter & Gunter, for Robinson, et al.
    
    1. Granting, for the sake of argument, that the remainders in this case were equitable, the conveyances by the trustee, carrying on their faces notice that they were made in fraud of the rights of the reversionary interests, can, therefore, have no effect in a court of equity. All conveyances made by a trustee, in breach of the trust, are utterly disregarded by a court of equity, whatever may be the effect of such conveyances in a court of common law. Notwithstanding such conveyances of the legal estate by the trustee, the cestui que trust can deal with the equitable right as giving him the entire power over the substantial and beneficial interest in the property. If the grantee of a trustee is not a purchaser for a valuable consideration, or if he purchases with notice of the trust, unless the sale Avas authorized, he, if he acquires no title AA'hateArer, merely takes the place of his grantor and becomes chargeable with the execution of the trust to the same extent that such trustee was chargeable before the transfer. The rule is that “the trust property may be folloAved by the OAvner as long as it can be traced and identified, until it falls into the hands of dona fide purchasers for value without notice.” In this case, therefore, all conveyances by Welsh, the trustee, bearing on their faces that they Avere made in breach of the trust, did not, per se, affect the rights of the remaindermen in equity. So far as the remainder-men were concerned, the grantors held the property affected by the trust, the same as if it 'had remained with Welsh. — 1 Perry on Trusts, §321; Underhill on Trusts and Trustees, 485, note, 2; 28 Amer. .& Eng. Encyc. of Law, 88 and notes; 27 Amer. & Eng. Encyc. of Law, 250-1 et seq. and notes; Wolfe v. State, 79 Ala. 206; Nat. Bank v. Ins. Go., 104 U. S. 54; Pennell v. Delfell, 4 DeG. M. & G-. 372; May v. LeOlaire, 11 Wall. 217-235.
    2. Since the life estate fell in, the remaindermen are entitled to recover in their several actions. Where the legal estate, in connection with an equitable remainder, after the life estate is conveyed in fraud of the equitable right to convey, the remaindermen hold only an equitable interest, and they are under no obligation to institute a suit to preserve their right before the life estate falls in. Their right of action does not accrue until after the termination of the life estate. — 2 Perry on Trusts, §860; 2 Story’s Eq. Jurisprudence, §1520; 1 Brick. Dig. 698, §852. It is true the equitable title may be exposed to the danger, in many instances, of being lost from the legal title passing into the hands of bona fide purchasers without notice. But if the conveyance of the legal title is made with notice to the purchaser of the equitable limitation on that title, and the conveyance is not made to subserve that interest, but to defraud it, the equitable limitation remains in all respects unaffected and the legal title still stands, as it stood before, in an attitude of strict servitude to the equitable interest. — 1 Lewin on Trusts, 246; 2 Lewin on Trusts, 864; Underhill on Trusts and Trustees, 485 and notes; Jones v. Shaddock, 41 Ala. 262; Lee v. Lee, 67 Ala. 406; 2 Spence Eq. Jur. 197; 27 Amer. & Eng. Encyc. of Law, (1st ed.), pp. 250-251; 28 Amer. & Eng. Encyc. of Law, 88. In 2 Perry on Trusts, section 860, it is said: “But in these cases, the right of the cestui que trust can not be barred until his right falls into possession. If, therefore, the cestui que trust holds in remainder or reversion, the statute will not begin to run until his right to the possession falls in by the determination of the particular estate.”' — Wilson v. Moore, 1 M. & K. 73.
    3. Laches. There are two kinds of laches. One, the mere lapse of time; the other, “acquiescence in special conditions and circumstances, which render it inequitable to enforce the demand.” — Ashurst v. Peck, 101 Ala. 508; Galliher v. Gackoell, 145 U. S. 372; Rives v. Morris, 108 Ala. 527.' The first is a defense peculiar to equity, and is the equitable bar raised by that court against stale demands in analogy to the statute of limitations where there is no statute applicable. — 2 Story’s Eq. Jur. §1520. This period in this class of laches is never shorter than the period of the statute of limitations to corresponding legal rights, and is judicially fixed at twenty years after the accrual of the cause of action. It is founded on the idea of the neglect of the assertion of a known right for so long a period as to give rise to the just presumption of abandonment, and that because' of the change in conditions and relations during this long period of delay it would be unjust to premit' its assertion. And it, therefore, has no application to reversioners and remaindermen until their right of action accrues. — 2 Perry on Trusts, §§850, 860; 1 Lewin on Trusts, 379; 2 Lewin on Trusts, 923; 12 Amer. & Eng. Encyc. of Law, 568; 13 Amer. & Eng. Encyc: of Law, ■ 720; Bank v. Nelson, 106 Ala. 542; Scruggs v. Decatur M. & L. Go., 86 Ala. 173.
    4. The second kind of laches is a species of estoppel, in which the lapse of time is only one of the ingredients, or facts, making out the defense.
    And in applying an estoppel, of course, the rules governing in such cases must prevail. One of which is, that it must be certain to every intent. There are three kinds only of estoppels. By record, by deed, and in pais. There is no record here, and there is no estoppel by deed. The deed of the trustee, not being in pursuance of the trust, or for the remaindermen, but in fraud of the trust, does not raise any estoppel in equity.
    The estoppel, if any, then, is in pais. Such an estoppel, says Mr. Bigelow, arises (1) from contract, (2) independently of contract, from act or conduct which has induced a change of position in accordance with the real or apparent intention of the party against whom the estoppel is alleged.- — Big. on Estoppel, (5th ed.), 451. No contract by or in behalf of these remaindermen is alleged; therefore, if there is any estoppel in pais 
      against them it arises from conduct, which has reasonably induced such a change of position by the other parties as to make it inequitable to enforce the claim.
    Such “an estoppel is a legal consequence — a right— arising from acts or conduct,” which acts or conduct are established, or may be established in whole or in part, by the facts of acquiescence or ratification, which themselves may be helped to be made out by the lapse of time operating upon “a situation incomplete in its legal aspect, i. e., not yet attended with its full legal consequences.” — Bigelow on Estoppel, (5th ed.), 457, 094.
    It is this kind of lapse of time, or laches, with which we now have to deal, and which alone could have been meant to be applied to this case. And in all cases in which lapse of time is used as an argument against relief which otherwise would be just, the validity of the defense must be tried upon principles substantially equitable. — Linclsay Petroleum Go. v. Hurd, L. R. 5 P. C. 239; Erlanger v. Phosphate Go., 3 App. Cas. 1279; Galliher v. Oadtvell, 145 U. S. 368. No special conditions are here set up showing the inequity of permitting the remaindermen to recover.
    If laches or staleness, then, is to be urged as a defense here, it cannot be of this latter kind any more than of the first kind, because there is no ingredient of such an estoppel alleged or shown. — Big. on Estoppel, (5th éd.), 570. And Ave have seen that the general plea of staleness can have no application to remaindermen who sue within the period of the statute of limitations after the particular estate determines.' — Authorities supra.
    
    The rule as just above announced is not affected or changed under the. doctrine of election open to persons Avho have been injured or whose rights have been invaded, to choose between inconsistent rights. While the rule affords an option betweeen different rights or remainders as one of the first instances for the benefit of plaintiffs, the binding nature of the choice constituting an election is for the protection of the defendants. In this case there Avas no obligation to reject the sale, because it avus not made for the remaindermen, nor in pursuance of the authority to sell. There was no acceptance of the proceeds, and there is no tacit confirmation of the sale. The sale was, as it stood, bad in equity, unless it was confirmed ,and mere silence did not confirm it, because silence as to ability to disturb the possession or vacate the sale was imposed from the fact of the remaindermen’s right being in remainder. Goodman v. Winter, 64 Ala. 434; Shorter v. Frazer, 64 Ala. 74; Ramey v. Green, 18 Ala. 771; Lyde v. Taylor, 17 Ala. 270; Woodstock v. Fullemoider, 13 Amer. St. Kep. 78, notes; Allen v. DeGroodt, 14 Amer. St. Kep. 628.
    5. A trust under a conveyance in fee, which is short of the fee, but does not exhaust it, is not extended to a power to convey for purposes distinct from the active trust; and a power to sell, distinct from the trust of-conveyance, does not prevent the estate in remainder, from vesting under the statute of uses, though the conveyance is in fee to the trustee. Where the trust only extended to the life estate, there was no duty of the trustee, as such, requiring the fee in any event. In this case there was a mere power in words superadded to convey for re-investment. — 'Fenwick v. Potts, 8 DeG-. M. & G. 506; Poad v. Watson, 37 Eng. Law and Eq. 112; Cockerell v. Gholmeley, 1 0. & F. 60; 2 Lewin on Trusts, ■'§§857-863-4; Gray v. Lewis, 8 L. K. Eq. 526-543; Wilson v. Moore, 1 M. & K. 73; Hill v. Simpson, 7 Yes. 152; May-v. LeOlaire, 11 Wall. 217; Wimbish M. M. B. & L. Asso. 69 Ala. 575; LeWeve v. LeNeve, 2 L. Eq. Gas. 109.
    6. A common law power under the statute of uses to sell another man’s estate for re-investment is not properly ór well executed, and does not pass the legal title when the fraud in the power and the breach of the trust are disclosed on the face of the deed. When a conditional power is given to deal with another, man’s title and estate, there is an implication ‘that not only forms must be strictly complied with, but that honesty and fair dealing shall also be observed; and it is clear law that a departure from the power in the last should be, as it is, more fatal than in the first, even in a courts of law. Jackson v. Grafts, 18 Johns. 110; Harris v. Strodl, 132 N. Y. 392; Russell v. Russell, 36 N. Y. 581; Allen v. DeWitt, 3 N. Y. 276; Syracuse Bank v. Holden, 105 N. Y. 415; Scholle v. Schollc, 113 N. Y. 261; 2 Washb. on Real Prop. 278; 2 Wharton on Evidence, §§1334, 1353; Lawson on Presumptive Evidence, 276-7; Bailey’s Onus Probandi, 257.
   HEAD, J.

On the 30th day of April, 1847, John Falconer, in consideration of $900 paid by Mary Jane Robinson, bargained, sold and conveyed, by deed in fee, with warranty, unto Thomas Welsh, the lands in controversy, situate in the city of Montgomery, Alabama, “in trust and for the sole and separate use and benefit of the said Mary Jane Robinson during her natural life, and, at her death, to the issue of the said Mary Jane Robinson, by her marriage with her present husband, Seth Robinson, free from all liability for the debts, contracts of her present or any future husband, with the power to bargain and sell and such assurances to make of the same to any person, on request of said Mary Jane Robinson, in writing, and invest the proceeds of the sale thereof in such property as the said Mary Jane Robinson may select, and the same to be held subject, in like manner, to the uses and trusts hereinbefore stated.”

On the 30th day of January, 1854, as the deed recites, said “Thomas Welsh, trustee for Mary Jane Robinson, for and in consideration of three thousand dollars, to the said Mary Jane Robinson in hand paid, by Nathnaiel H. Wright, the receipt whereof is hereby acknowledged,” by deed in fee, with warranty, granted, bargained, sold, enfeoffed and confirmed unto the said .Nathaniel H. Wright, a certain part of said lands. This deed was signed and sealed by “Thomas Welsh, trustee,” and by said Mary Jane Robinson. At the same time, Seth Robinson, the husband of said Mary Jane, executed a quit claim deed to said premises to said Wright. By mesne conveyances from. Wright, this property was, in March, 1873, duly conveyed to the defendant, George W. Stone, vesting in him all the title of the said Wright. Immediately after the execution of the Welsh deed to Wright, in Í854, he, Wright, took possession of the granted premises, as rightful owner, and he and those succeeding to Ms right and possession, including the defendant, Stone, have since held independent and adverse possession thereof.

On the first day of June, 1858, the said Thomas Welsh and his Avife, by deed, quit-claimed all right, title and interest, in the remaining portion of said lands, to said Seth Bobinson; and, at the same time, Seth Bobinson and his wife, the said Mary Jane Bobinson, for and in consideration of thirty-five hundred dollars paid by Mary 0. Pierce to the said Seth Bobinson, conveyed the same by deed, in fee, with warranty, to said Mary 0. Pierce, Avho Avent into immediate possession as owner, and held independent adverse possession thereof, until her death in 1889.

The said Mary Jane Bobinson 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, knoAvn to, and participated in by the said several purchasers from him, and knoAvn to said Stone, in that the purchase money Avas not, in either ease, received and invested by Welsh, as trustee, as required by the terms of the trust, but that the same was suffered to be received, and Avas received, in the one case, by Mrs. .Bobinson, and in the other, by her husband; and the bill avers that he, Welsh, died many years ago without leaving any estate, and Avithout ever having received anything whatever for or on account of the said sales of said trust property; and without ever making, and Avithout any one else making, any reinvestment Avhatever of the proceeds of either of said sales. The prayer Avas that complainants be decreed to be entitled to said lands; that the several holders thereof be required to convey the saíne to them, and that an account of the value of the use and occupation of said property since the death of said Mary Jane Bobinson be taken and the defendants decreed to pay the same, and for general relief. The respondents set up, in bar, inter alia, laches of complainants, and staleness of demand.

The cause coming on for hearing before us, on appeal, upon consideration of the questions and line of argument then prominently addressed to our attention, Ave reached the conclusion that the complainants were invested with the legal title to the premises and had an •adequate remedy at law; and we accordingly dismissed the bill. Upon the application of respondents for a modification of our opinion, holding' that the legal title was in the complainants, the case was again elaborately argued by counsel, upon briefs, and new considerations brought to our attention, which uoav convince us that our former opinion Avas erroneous, in the respect above stated, and that the application for a modification of it ought to be granted. We Avill proceed presently to give our reasons for this conclusion.

After that decision, real actions were instituted by the complainants, in the circuit court, and prosecuted to verdicts and judgments in their favor; and from those judgments appeals were prosecuted to this court, and are now before ns. We have before us, also, the said application for a modification of the former opinion, in the equity cause.

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, Aralid 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 Wesh, 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 t'he 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 t'he instrument imports a larger estate .than is thus essential, it is cut down to the measure of the exigencies of the trust; as where t'he 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 of the trust necessarily requires.” All commentators and adjudged cases, including a number of our own decisions, concur in these propositions; and as the' principle is ndt 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 divested 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 it 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 on Trusts, 213, (3); Huckabee v. Billingsly, 16 Ala. 414. 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. Encyc. of Law, 115, note. In this volume beginning at 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 19 Am. St. Rep. 266, 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 them will be sustained by the fee in them, and not by the mere [lower.” — 1 Perry on Trusts, §316. This describes the Falconer deed in •question. The conveyance to Welsh ivas, 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, t'he 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 divested himself of it by grant; or, not having granted it, until the death of Mrs. Robinson, when her request for the exercise of the [lower would have become impossible; 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 ex dem. Gosson v. Ladd, 77 Ala. 223, (19 Am. St. Rep. note on p. 292). See full discussion of the question in Gindrat v. Montgomery Gas Light Co., 82 Ala. 596.

Mr. Lewin (p. 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 the trustee were the usufructuary owner.” He proceeds to give numerous illustrations of the rule, and reaching page 225, says: “A trust estate, whether real or personal, may, at law, be conveyed, assigned or encumbered by the trustee like a beneficial estate; and if there be co-trustees, each may exercise the like powers of ownership over his own proportion. Thus, if lands be vested in trustees as joint tenants, each may, at law, receive the rents, and each may, at law, sever the joint-tenancy by a conveyance of his share.” He also shows that a devise by the trustee of the trust estate, will at law pass his title to the devisee. But, of course, all such dispositions are subject to the equitable rights of the cestui que trust. Thus, the same author says, at page 572: “In a court of law, the-trustee, as the absolute proprietor, may of course exercise all such powers as the legal ownership confers; but, in equity, the cestui que trust is the absolute owner; and the question we have to consider in this place is, how far the trustee may deal -with the estate without rendering himself responsible in the forum of a court of equity.” He then proceeds to set forth, at length and in detail, the rights, powers, and liabilities of the trustee, in a court of equity.

Mr. Perry says: “As a general rule, the legal estate in the hands of a trustee has at common law precisely the same properties, characteristics, and incidents, as if the trustee were the absolute beneficial owner. The legal title vests in him together with all the appurtenances and all the covenants that run with the land. The trustee may sell and devise it, or mortgage it, or it may be taken on execution. It may be forfeited, and it will escheat on failure 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 incumbrances 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 incumbrances 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 legal estate.” — 1 Perry on Trusts, (3d ed.), §321; Hill on Trustees states the same doctrine, marg. pp. 175, 282, 283; Washburn on Real Property, the same, vol. 2, marg. p. 482 et seq. See also Tiffany & Bullard on Trusts & Trustees, 824 et seq.

In Huckabee v. Billingsly, 16 Ala. 414, Huntington executed to Howell a deed, in trust, to secure a debt due to Harrell, and secondarily to secure debts due to the Branch Bank at Mobile. Without the debts to tin? bank being paid, the trustee, in plain contravention of the trust, executed to the trustor, Huntington, a quitclaim deed in consideration of the payment of the Harrell debt. Afterwards, in strict pursuance of the power of sale contained in the trust deed, he, the trustee, sold the property to the plaintiff, and executed to him his deed thereto. The court held that the quitclaim of the trustee to the trustor divested the title of the former, and revested it in the latter, and that the action of trespass to try titles, founded on the subsequent deed of the trustee to the plaintiff, under the power, could not be maintained. Chief Justice Collier discussed the subject at length; saying, inter alia, that, “A trust estate, whether real or personal, may, like a beneficial estate, be conveyed, assigned, or incumbered by the trustee, at Iuav. As the dry legal estate in the hands of the trustee is affected by the operation of the laAAr, and may be disposed of by the act of the trustee, precisely in the same manner, as if it Avere vested in him beneficially, so it confers upon him all the legal privileges, and subjects him to all the legal burdens that are incident to t'he usufructuary possession.^. Thus he may sue at laAV respecting the trust estate; the cestui que trust, though the absolute OAvner, in equity, is regarded, in a court of Lvw, in the light of a stranger.” See also, Herbert v. Hanrick, 16 Ala. 581.

In McBrayer v. Cariker, 64 Ala. 50, Chief Justice Biuckell said: “The general rule, insisted on by appellant, may be conceded, that at laAv the trustee, clothed Avitli t'he legal title, unless restrained by the terms of the trust, may convey, assign, or incumber 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, supra. But, in that case, the conveyance of the trastee, relied upon, Avas made after the actiAre duties of the trustee, under the terms of the deed, had terminated, if, indeed, the trust had ever been an active one — a question AAdiich t'he court said it Avas unnecessary to decide; and it Avas correctly held that the trustee had no title to convey, at the time he executed his deed. The authorities are uniform that after all poAver in the trustee to perform an active duty, under the peculiar terms of the trust, ceases, his title, which Avas commensurate only Avit'h the duty, also ceases, and thereafter lie can conA^ey none to another. Comby v. McMichael, 19 Ala. 747; Doe ex dem. Gosson v. Ladd, 77 Ala. 223.

In Hairston v. Dobbs, 80 Ala. 589, the executor of a Avill Avas given “full poAver to purchase or sell property he may think necessary or proper, * * * * * * or to dispose of anj- property for the benefit of the estate.” He sold and conAmved 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 papable 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.

Mr. Freeman, in his note supra, 19 Am. St. Rep. 267, citing many authorities, states the rule thus: ‘‘Where the rules of law upon the subject have not been modified by statute” (which he subsequently shows is the case in New York, Michigan, Wisconsin, Minnesota, Kansas, California and Dakota) “all conveyances by a trustee, whether to an innocent purchaser or not, and whether in contravention of the trust or not, operate upon the legal title and vest it in the grantee. This conclusion,” he says, “necessarily followed from the refusal of the common law to recognize trusts or equitable titles, for unless such trusts or titles were to be considered, there was no reason why the trustee should not convey to whomsoever he pleased. His conveyance was, therefore, valid at law, and the rights of the beneficiary could be protected only by his seeking redress in equity, and compelling the grantee to respect and to execute the trust, as the original trustee should have done.” As stated above, in New York and the other States mentioned, the rule is changed by statute, and it is declared that where the trust is expressed in the deed to the trustee, creating the estate, every transfer or other act of the trustee in contravention of the trust, is absolutely Amid. Discussing these statutes, Mr. Freeman observes: “The doubts most likely to arise concerning the signification of these statutes are, first, do they mean that inhibited conveyances shall be deemed void at law, as Avell as in equity? and, second, if void both at laAV and in equity, are they also Amid when, upon their face they appear to be made pursuant to the authority conferred on the trustee, and the fact of their being in contravention of the trust must be established by extrinsic evidence; and knowledge of this fact cannot be brought home to the grantee or his successors in interest?” He then proceeds to the New York decisions, construing the statute, holding the inhibited conveyances to be void, both at law and in equity, against purchasers with or without notice; that the title, powers and duties of the trustee are unaffected by the conveyance, and he continues to be trustee to the same effect as if the conveyance had not been made. A case — the counterpart of Huckabee v. Billingsly, supra — is cited, where it was held, under the operation of the statute, that the reconveyance to the trustor by the trustee, was absolutely void. See the cases collated in the note sitpra. We 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.

Notice the analogies which we meet with in almost every day experience. A mortgagee’ is invested with the legal title to land, in trust, for the sole purpose of securing his debt. I-Iis power to sell for that purpose is required to be exercised after strictly defined formalities; yet his bare deed to the premises, or a transfer of the mortgage with apt words to convey the land, passes the legal title to the land, though there be entire disregard of the prescribed formalities. And if the condition of the mortgage be not performed by the mortgagor to the very day, payment of the mortgage debt thereafter, (until the rule was changed by a recent statute in this State), did not operate to re-transfer the title to the mortgagor; and his only remedy was in equity. A vendor of land who receives full payment of the purchase money, and puts the purchaser in possession without a conveyance, stands as a constructive trustee of the vendee; and, clothed with the dry legal title, may eject the vendee at law. The vendee’s only remedy is in equity. A trustee of an express trust, purchasing at his own sale, commits an open and conclusively prejudicial breach of his trust, yet his purchase discharges the express trust, and converts him into a constructive trustee, of which character the cestuis quo trust, may avail themselves, by a proceeding in equity, seasonably begun- — -within two years, under our rulings, unless there be special circumstances justifying greater delay. Countless instances might be given, demonstrating the universal rule of the common law, that trustees clothed with the legal title by virtue of the trust, and 'having and claiming no other estate in the premises and professing to convey no other, pass that .title by their grants, without any regard, in a court of law, to the nature, object or purposes of the trust, or conformity to their requirements. Indeed, it required a statute in this State, to prevent the descent of that title to the heirs of the trustee. — Code of 1886, §1848; Code of 1896, §1044. In the objects and requirements of the trust, are centered the equitable rights of the eestuis que trust, and in a court of equity alone can they enforce them, or redress their breach.

A moment’s reflection discovers, as a logical necessity, that the very 'doctrine itself of the validity of trustees’ conveyances, in a court of law, implies its application to conveyances in contravention of the trusts; for if a conveyance be in conformity to the trust, no question of its validity can possibly arise. It is absolutely valid and unassailable, both at law and in equity. And it seems needless to argue, that so far as the validity of the conveyance, in a court of law, is concerned, it is wholly indifferent how the breach is manifested; whether shown upon the face of the trustee’s deed, or to be established by extrinsic averment and proof. The breach, whatever its nature, being immaterial, as affecting the legal conveyance, its existence or non-existence is not a matter of inquiry. Thus, it is impossible to find a case anywhere, where the trustee Avas sui juris and was confessedly clothed Avith the legal title, and his deed Avas not immoral and Aroid, as offensive to public policy, that his conveyance Avas assailed, except because it was in contravention of the trust; and in every such case, at laAV, Avhich our research discloses, (and Ave have spared no pains, in that behalf), with one exception to which we Avill refer, the parties complaining Avere remitted to their remedies in equity. See the Alabama cases above referred to; also the numerous authorities in point collected upon the briefs of counsel; to which we acid Taylor v. King, (Va.) 8 Am. Dec. 746; Cox v. Blanden, (Pa.) 26 Am. Dec. 83; Reece v. Allen, (Ill.) 48 Am. Dec. 336; Gale v. Mensing, (Mo.) 64 Am. Dec. 197, and extended note; Stephens v. Clay, 31 Am. St. Rep. 328.

Tlie exception referred to, is tlie 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 sain 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, supra, 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 non-conformity to the prescribed formalities, as to notice, etc., but a deed was made to the purchaser by the mortgagee; and it ivas 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 ejectment.

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 tlie land conveyed to the purchaser. Suppose, a demurrer to such a bill, objecting that complainant had his remedy at law, in that the breach of the trust rendered the sale and conveyance to the purchaser void at law, and that his only remedy was to take back tbe land, wbat would be tbe ruling upon tbe demurrer? To ask the question is to answer it. Tbe law prescribes no fixed, unalterable consequence of a breach of trust, committed in tbe disposition of a trust estate. Tbe remedies, in equity, of tbe cestui que trust, are various and subject to bis election.. He may, we repeat, affirm tbe breach; submit to the conveyance, and elect other redress against tbe trustee and purchaser. If an infant, tbe court may elect for him. Tbe remaindermen, in this cause, may have deemed tbe sales advantageous to them, by reason of their power to have tbe purchase money brought into, and secured by tbe court of equity, for their ultimate enjoyment; charging tbe payment of tbe sum, not only upon tbe trustee and purchasers, personally, but upon tbe lands inequitably disposed of by tbe trustee. To determine that the breach of trust is, of itself, conclusive of tbe invalidity of tbe sale, would be to determine that tbe only recourse of tbe cestui que trust is to reclaim tbe land. If tbe sale and conveyance are to be treated as nullities, then, although tbe lands may have sold for a large price; or may have enormously diminished in value since tbe sale; or, being valuable principally for their improvements, the improvements may have been destroyed after tbe sale, without fault of tbe purchaser, yet tbe benefits of these casualties will be conferred upon tbe culpable purchaser, by securing him exemption from tbe restoration of tbe original agreed purchase money to its legitimate channels, and compelling tbe cestui que trust to take tbe land, only, in its denuded or valueless condition. Of course, tbe cestui que trust may, by bis bill, elect to annul tbe legal conveyance and reclaim tbe land, instead of other redress.

These elections cannot, of course, be made in a court of law.

Again, were we to bold that tbe Wright and Pierce deeds are void, because of tbe breaches of trust apparent upon the deeds themselves, we would presuppose that tbe recitals of payment of tbe purchase money to Mrs. Robinson, in the one case, and her husband, in the’ other, conclusively establish, as matter of law, beyoncl 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 avus actually, honestly and judiciously invested in other property upon the same trusts — in slaves, it may be, AArho Avere lost by death or emancipation; or in stocks or bonds which went into the hands of the trustee; or even in lands, Avith all the necessary muniments of title; or, though they be ready and able to aver and proAre that the transactions took the shape they did, by the express consent and request, in writing, it may be, of all the remaindermen, yet the mere circumstance, that the deeds recite payment of the money to Mr. and Mrs. Robinson, forever precludes them; for-eA’er shuts them out from all opportunity to explain, and sIioav that the trust requirements were, in fact, honestly and judiciously carried out, or that the wishes and desires of the remaindermen, expressly made knoAvn, Avere honestly observed. A practical test: Suppose the remaindermen had, Avithin a reasonable time after the sales, filed their bill to redress the breaches of trust indicated by the recitals, in question, electing the nature of relief deemed most advantageous to them; to AAdiicli the trustee and purchasers anSAvered or pleaded, in bar, a due reinvestment, such as Ave have above supposed, or an act of clear estoppel, as supposed, Avould any court hold that such ansAver or plea, established by proof, would not have defeated relief? Most assuredly not. See the consequences of such a rule: It Avill 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 haAre been executed in breach of the trust, participated iu 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 prwia facie evidence of conformity 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 Amid, 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 Ave haA^e said, be excluded; for a party cannot ratify or affirm a conveyance absolutely Aroid, 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 Avould require a neAV 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 Avith 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 false; that the purchase money was, in fact, paid by the purchaser to the life tenant and her husband, instead of to the trustee who alone Avas authorized to receive it; and praying for such lawful redress as the complainant, as cestui quo trust, might elect and claim. Thus, upon the principle that a deed is void because of the breach of trust, Ave Avould haAre a bill which shoAved, by its allegations, that the deed Avas absolutely -Amid from its inception; and unless the bill was so framed as to justify a decree cancelling the deed.as a cloud upon the complainant’s title, it would go out of court for Avant of equity. Again, the rights of the parties in reference to the Arerity of the recitals must be correlative. The trustee is the embodiment, so to speak, of the cestui 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 corailary, they are conclusive when they sIioav 'conformity, thus excluding, in the latter case, all redress.

A purchaser from a trustee, in contraArention of the trust, in no sense, becomes thereby an express trustee. He becomes a trustee in invitum, by construction of law. He is a constructive trustee. • He holds actually in his oavu right, and in hostility to the Avorld; but a court of equity, as Judge Story puts it, Avill “force a trust upon his conscience,” and compel him to perform it or ansAver for its fruits. — 2 Story Eq. Jur., §1257; 2 Washburn Real Prop., marg. p. 177, §21; Hill on Trustees, marg. p. 144; 1 Perry on Trusts, §§217, 241; 2 Pom. Eq. §1018; Smyth v. Oliver, 31 Ala. 39. A resulting trust, though by no means an express one, because not declared in the deed out of Avliich it arises, approaches more nearly thereto, in that it rests upon a presumed intention; from which results the rule, that the purchase money must have been paid at the time of the purchase; Avhereas, 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 execute it.

In AdeAv of these considerations Ave are compelled to hold that the legal title passed by the Welsh deeds to Wright and Pierce, and that the remedy of the complainants Avas 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 have been entitled to, or ever could have become entitled to — the identical relief (assuming the same election) sought by the bill in this case. The fact that by the terms of the Falconer trust the complainants could have had no possessory light until the death of Mrs. Robinson, who was the life-tenant, cannot possibly affect the question. It is unquestionably true (for it is the settled rule everywhere, saving what shall be said of Iron Co. v. Fullenwider and cases following it), that one having a legal title entitling him to a possessory action upon the falling in of a precedent particular estate, is not affected by any lapse of time, howsoever great, until the particular estate falls in, by which event' he, for the first time, becomes entitled to his action. There can, it would seem, upon principle, and certainly so by the great weight of authority, be no disseizin of a remainderman, having the legal title, in remainder in himself, until his right of possession accrues, for until then he is without remedy of any sort, against any trespasser or adverse holder, except the right in equity to stay waste and the like. But here, these complainants were divested of all title by Welsh’s execution of the trust. Their estate was gone. Neither the death of Mrs. Robinson nor any other event would or could have vested in them any estate whatever growing out of the muniments of title. If there was, in the execution of the trust, such a breach committed by Welsh and his vendee as is alleged, its effect was, as we have shoivn, to create in the complainants an independent, substantive cause of relief for being made AAdiole against the consequences of 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 haA-e 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 sale, 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, ivas 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 t'he 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 the trustee had suffered himself to be disseized for a period sufficient to bar him, thereby barring all cestuis que trust) occurring during the life of Mrs. Robinson, could have affected their right of recovery. These possessory rights, it is manifest, did not and could not come into existence until, as independent, substantive equities, they should be sued for and obtained in a court of equity, and that remedy was open, immediately upon the commission of the breach of trust, to precisely the same extent and effect as after t'he death of Mrs. Robinson. A perfect bill filed before her death would have been in the identical words of one filed after that event. It would not have been even necessary to ask, in the bill, for a writ of possession, for that could be done by petition to the chancellor after passing the decree-‘ establishing the complainants’ estate and right of possession, suggesting and showing the death of the life tenant. The suit in equity is for the purpose of acquiring an estate which will give a possessory right enforceable by action of law, at the time which, by the effect of the grants as 'they are decreed to exist, such right would arise. The power of the chancellor, upon establishing this estate, on petition, to put the complainants in possession is purely auxiliary, incidental — not the primary purpose of, nor forming a part of the equity of, the hill. The question of when, or on what contingency, the complainants may become entitled to possession cannot possibly concern the relief sought by the bill.

Let us illustrate by a perfectly plain case: One. having (we will say) a vested leghl 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 collation of the authorities on the subject we are discussing. Though the last Alabama case on the subject (Lowery v. Davis, 8 So. Rep. 79) seems to commit this court irrevocably to the much criticised and doubtful, if not plainly 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, supra), the attempted sale of the reversionary estate was absolutely void — the legal title, according to the muniments, continued 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 reversioners7 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 equitable estoppel was created upon the reversioners, 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 t'he 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 executed the trust, the remaindermen had no title and no- possibility of becoming invested with one, except by suing in equity to acquire 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 overrule that.great and invaluable principle of equity which has stood for centuries requiring the suitor to be diligent. What conceivable reason can there be for exempting a person 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 decree, when obtained, establishes perpetually Ms title, entitling him to maintain his action for possession whenever the event entitling 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 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 a decree of court fraudulently obtained. The remainder-men 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.

We think there can be no doubt that the dismissal of the bill was supported by the staleness of the demand.

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.

Brickell, C. 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 propose 'to 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 as innocent 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 purchasers and that plaintiffs instituted proceedings within a year after- the termination of the life estate to enforce their rights, the decision of this court is, that they are without 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 vested in the trustee, but in direct violation of that power, did not divest the estate of the remaindermen, and that upon the falling in of the life estate, under the facts, upon the plainest principles of justice, they were entitled to assert and recover the estate given to them by the conveyance of their grandfather. The authorities are numerous also which sustain this view, and which can be found in the briefs of counsel representing the plaintiffs.  