20 Ala. 133 | Ala. | 1852
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
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.