5 Ala. 424
Ala.
1843
ORMOND, J.

It can admit of no controversy, that the sale of a chattel by one out of possession, and to which he has the mere right of action, will not confer on the vendee such a title as will enable him to sue for its recovery in his own name. This is the point decided in Goodwyn v. Loyd, [8 Porter 237,] and rests upon the familiar principle, that a chose in action is not assignable at common law. It is equally as clear, that the mere fact that the actual possession is not in the vendor at the time of the sale, does not show that he may not transfer to the vendee, both the right of property, and the right to sue in his own name for its recovery, if the possession is improperly withheld. The right of the vendee, in such a case, to sue in his own name, will depend upon the fact, whether the person in possession of the property asserts a title to the property hostile to that of the vendor, or whether the title which he sets up is in subordination to, or derived from, the vendor.

If the former, then, although the possessor may have acquired the possession by a trespass or by contract, — as for example by a bailment, from the vendor, the title asserted by him being hosT tile to that of the vendor, could not be transferred by the latter, so as to vest the transferee with the right to sue in his own name; for in regard to personal property, there is no such rule as prevails in relation to real property; by which the tenant is forbidden to .dispute the title of his landlord. But, if the latter, then, as the right to personal property draws to it the possession, if the possession was withheld after such sale, the vendee might maintain an action for its recovery in his own name. See Brown v. Lipscomb, [9 Porter 472,] Where this doctrine is asserted and illustrated.

The question, then, on this part of the case is, what title did the defendant set up? Wasitone adverse or hostile tothat of the trustee? The title of the trustee was derived from the deed of Miller & Addison, vesting in him the legal title, and reserving to themselves only the right of possession, which right ceased, when default *428was made in failing to pay^ the debt, to secure which the deed was made. The title of the defendant is derived from McCown & Conrow, who purchased from Miller & Addison, after the deed was made and recorded. It is therefore most apparent that the title set up by the defendant is, in fact, the mere title of Miller & Addison; it cannot therefore be adverse or hostile to that of the trustee, which is derived from the same source, but prior in point of time. In a word, the defendant is clothed with the title of Miller & Addison, and no other; and if they could not dispute the title of the trustee, neither can he. If it could be admitted that the maker of a deed of trust could, after the making of the deed, by a sale of the property, create a title hostile to that of the trustee, and thereby prevent a sale of the property according to the terms of the deed, and drive the trustee to his action to recover the possession, there is an end of this mode of securing the payment of debts. It does not require the prophet’s ken to foretell, that after such a decision there would be but few sales under deeds of trust.

It results from this examination, that the title of the defendant was not adverse to that of the trustee; but being derived from, and held under the maker of the deed, was entirely consistent with the title of the trustee.

It was, however, strenuously urged, that on principles of public policy, sales by trustees, in the absence of the property, ought not to be tolerated.

The trustee derives his power to act from the deed, and is bound to conform to its provisions. In the language of the court, in Greenleaf v. Queen, [1 Peters, 138] where the deed required the trustee to sell at public auction, “ This was the test of value which the grantor thought proper to require, and it was not competent to the trustee to establish any other, although by doing so, he might in reality promote the interest of those for whom he acted.” Nor can it admit of controversy, that the power delegated to the trustee, is a special power, and that he cannot protect himself from liability, or vest a title to the property he sells, but by acting in strict conformity with it.

But’ these well established principles must be considered in connection with others equally clear. The limitations on the power of the trustee, are for the benefit of those interested in the trust — ■ the maker of the deed and the cestui que trust; and it cannot be *429doubted that they may waive the performance of conditions designed for their benefit; it is equally certain that neither party can object that a duty has not been performed, the performance of which has been prevented by his own act.

The deed does not, in express tenns, require that the property should be present at the time of the sale, but such must be the legal inference, as otherwise the property could not be expected to bring its fair value. But if the maker of the deed, who, by its terms, was entitled to the possession until default of payment, voluntarily retains the possession, and refuses to produce the property on the day of sale, he cannot object that it is sold in its absence. To allow him to prevent the sale by voluntarily withholding the property, would be to permit him to take advantage of his own wrong, and by his own act to defeat the provisions of the deed. Doubtless, the cestui que trust might refuse to permit the sale to proceed in the absence of the property; but if he waives this right, no one else can object to it.

Thus in the case cited from 1 Peters, 138, the purchaser objected that the property had not been sold by the trustee in the manner prescribed in the deed; but the court replied, that as the maker of the deed, and the cestui que trust, waived all objections to the regularity of the sale, no one else could complain.

In this case, the defendant who has succeeded, by his purchase of the trust property, to all the rights and liabilities of Miller & Addison, is precluded from objecting that the slave sued for was sold in his absence, and greatly below his value, because he voluntarily refused to produce him, and thus, by his own act, caused the result which he now complains of.

This point was thus ruled in the case of Echols v. Derrick, [2 Stewart, 144,] a case which, in all its material features, is precisely analagous to this.

Let the judgment be reversed, and the cause be remanded.