Scott, Judge,
delivered the opinion of the court.
John Taylor owned some personal property, and conveyed it by deed to the plaintiff in error and the plaintiff below, in trust to secure the payment of a debt due John H. Koppel-man. Afterwards, Taylor, by deed, conveyed the same property directly to Koppelman, and the defendant, Keevil, having taken possession of it, this action was brought by Bergesch to recover it; and the question is, whether the suit was properly brought in his name.
*1291. Bergesch was the trustee of an express trust, and the deed to him from Taylor conveyed the legal title. Taylor’s subsequent deed could not divest this title without the consent of Bergesch. That deed was inoperative, so far as it affected the property previously conveyed. Bergesch having the legal title, and being the trustee of an express trust, the suit was properly brought in his name.
2. The affidavit of Bergesch, showing that the petition was sworn to before it was filed, warranted the court in overruling the motion to dismiss the suit. The court, under the circumstances, might have permitted the petition to be verified nunc pro tunc.
The other judges concurring,
the judgment will be reversed, and the cause remanded.