McKinley v. Irvine

13 Ala. 681 | Ala. | 1848

CHILTON, J.

1. We think the writ of error should not be dismissed. The decree directs the value of the shares to be paid to the complainant, which value is to be ascertained by rules which it prescribes. The amount in the complainant’s hands, as well as the expenses, are required to be deducted from the gross sum of the proceeds, and complainant is declared to be entitled on each share to one four-hundred and eighth part of the residue. Thus settling the rights of the parties, we think it comes within the principle settled in the case of Weatherford v. James, 2 Ala. Rep. 170, and Kennedy’s Heirs, &c. v. Kennedy’s Heirs, Ib. 573, and must consequently overrule the motion to dismiss the writ of error. That a reference was awarded to the master to ascertain the sum, which by the decree is ordered to be paid complainant, does not change or affect the character of the decree, or render it interlocutory merely. See Bank of Mobile v. Hall, 6 Ala. Rep. 141.

2. The main question, and that to which we shall chiefly direct inquiry, respects the title ■ made by the bill to the shares in controversy. The complainant must show by his allegations in the bill, that he is entitled to the relief which he seeks, and if he fail to set forth every essential fact necessary to make out his title to maintain the bill, the defect will be fatal. The general rule is, that no relief can be ■granted upon matters not charged, although the same appear in evidence, for the decree must be predicated upon the allegations as well as proof. “ The reason for the rule,” says Judge Story, “ is, that the defendant may be apprised by the bill, what the suggestions and allegations are against which he is to prepare his defence.” Story’s Eq. PI. § 257. Indeed, nothing is in issue except such facts as are charged in the bill, and all proof of facts not stated, either generally or circumstantially, must be regarded as without the issue, and consequently irrelevant, and a decree on such facts cannot be supported. Wilkes v. Rogers, 6 Johns. Rep. 565; Irnham v. Child, 1 Bro. Ch. C. 94; Crocket v. Lee, 7 Wheat. Rep. 522; Jackson v. Ashton, 11 Peter’s Rep. 229; Gresley Eq. Ev. 22-3; Story’s Eq. Pl. § 28; Morgan v. Crabb, 3 Porter’s Rep. 470; Boazman v. Draughan, 3 Stew. Rep. 243; Murray’s adm’r v. Mason’s adm’r, 8 Por. 211; Clemens v. Kellogg, 1 Ala. Rep. 330; Gibson v. Carson, 3 Ala. Rep. 421.

In Gilchrist v. Gilmer, 9 Ala. Rep. 985, it is said, the general rule, that the proof must correspond with the allegations, applies only when the evidence discloses a cause for relief, different from that set up by the party pleading it.

The allegations of the bill in regard to the title of the complainant in this case are as follows: After stating the attempted settlement between complainant and defendant, McKinley, in October, 1841, when the complainant exhibited a statement of the amount of money in his hands, collected as agent for the trustees, and demanded the payment of three shares, numbered 187, 397, and 399, which he says were placed in his hands by John T. Montgomery, for himself and his brother, James H. Montgomery, under express authority to obtain payment of what was justly due thereon, and after averring McKinley’s refusal to allow more upon each share than $475, and complainant’s withholding the sum of $2639 61, to pay said shares, and the subsequent suit against him by the trustees for the same, the bill states, “Your orator further states, that since said suit has been instituted, he has become the purchaser of said three shares of stock from John T. Montgomery, and his brother, James H. Montgomery.” The bill then states, that the shares were purchased by Samuel Hazard and Samuel Hazard & Co., but principally with the means of James Montgomery, deceased, the father of complainant’s vendors. That under some arrangement, the certificates were delivered to him, the §aid James, and a power of attorney was executed by Hazard to one Buncker to transfer the certificates to said James Montgomery, now deceased, but the transfer was not executed. That since the death of James Montgomery, Hazard and Buncker have made a power of attorney to John T. Montgomery, authorizing him to make such title to said shares as was in them. The bill then proceeds, “Your orator became the purchaser of said shares from said John T. Montgomery, and his brother, James H. Montgomery, the heirs and distributees of said James Montgomery, who, for themselves, and the said John T. Montgomery, as attorney in fact for Samuel Hazard and Charles N. Buncker, and in their names, by indenture, bearing date the 3d day of September, 1842, conveyed to your orator said three shares of stock, with all the rights and benefits appertaining thereto.” Thus it is shown by the bill, that the equitable interest in those three shares was in James Montgomery, deceased, and this equitable interest the complainant acquired from his two sons, the heirs and distributees of said James, while he acquired the legal interest from Hazard and Buncker, by their deed, executed by John T. Montgomery, their agent. This is the case made by the bill, and upon which the complainant must recover, if he recovers at all. Nor is this averment of the manner in which he acquired the title unimportant, but it is essential to the validity of the bill. In Wilburn v. Ingleby, 1 Mylne & K. 61, a bill brought by a derivative shareholder in an unincorporated company, for an account against the directors, alledging that they had made a profit to themselves at the expense of the company, was held demurrable, because it only stated the plaintiff to be a shareholder by purchase; but it did not specifically state the mode in which he acquired his share, and the manner of his holding, and that he had performed the conditions which, by the rules of the company, were required to be performed, in order to validate the transfer. See also Story’s Eq. PI. 215.

It is unnecessary for us to examine the question made by the counsel for the plaintiff in error, as to the power of a foreign administrator to transfer the stock so as to vest in complainant a right to sue. The proof in this case shows that the two sons of James Montgomery, deceased, did not acquire the stock as his heirs and distributees, but by devise from their said father; the will bearing date the 15th day of March, 1834, and'duly proved and recorded in the register of wills for the city and county of Philadelphia. The question, presented upon the record is, whether the proof sustains the case made by the bill. We think it clear that it does not. A title acquired by will as devisees was not putin issue by any of the pleadings, and forming no part of the complainant’s case, could not properly be made the foundation of a decree in his favor. See cases above cited, and Story’s Eq. Plead. § 257, 258, 264. In James v. McKernon, 6 Johns. R. 564, it is said, the good seuse of pleading, and the language of the books, both require that every material allegation should be put in issue by the pleadings, so that the parties may be duly apprised of the essential inquiry, and may be enabled to collect testimony in order to meet it. Smith v. Smith, 4 Johns. C. Rep. 281. So also, in Buck v. McCaughtry, 6. Monroe’s Rep. 82, it was held that an allegation of suggestion of falsehood will not let in proofs of the suppression of truths. So, if the complainant seeks to rescind a contract on account of deficiency of land sold, he will not be allowed to rescind for fraud which,he does not aver in his bill. Gouverneur v. Elmendorph, 5 Johns. Ch. R. 82; Thompson v. Jackson, 3 Randolph’s Rep. 504; Ibid. 263; Parker v. Carter, 4 Munf. 273; Boone v. Childs, 10 Peters’s Rep. 177.

The complainant having shown the equitable title to have been in the deceased Montgomery to the three shares, it is perfectly clear that he could not recover without showing the title became vested in himself. How does he show this? By a particular description of the conveyance under which he claims, a deed from two heirs and distributees of the decedent, one of them acting also as the attorney in fact of Buncker & Hazard, the holders of the legal title. Now, granting that the rule laid down in Wilburn v. Ingleby, is too stringent, and that it would be sufficient if the complainant had averred generally that he was the assignee of the three certificates of stock, which assignment to him vested in him a bona fide title thereto, and that under such general, averment, he might well have adduced proof showing his assignor derived title in any way in which it could be acquired, still the party can derive no benefit from the argument. The averment is, that “ the complainant became the purchaser in a particular way which is specifically alledged, and the court is called upon to deduce the conclusion of title from the specific facts set out as constituting it. These facts are put in issue by the pleadings, and must be proved as charged. If we are to regard, as shedding any light upon this subject, legal analogies, (and Lord Hardwicke and Redesdale go so far as to hold that there should be the same certainty in a bill in equity that there is in a declaration — Story v. Ld. Windsor, 2 Atk. 632; Mit. Pl. 284,) it is well settled in the practice in the law courts, that if a party take upon himself to state a particular estate, where it was only required of him that he show a general, or even a less estate, title or interest, the adversary may traverse the allegation, and if it be untrue, the party will fail. 1 Chit. PL 228-9, marg. p. and authorities there cited ; see also Pharr & Beck v, Batchelor, 3 Ala. Rep. 237.

So it is held that in an action on the case against the sheriff for levying under an execution against the tenant, without paying the landlord a year’s rent, if the plaintiff, though unnecessarily, profess to set out the terms of the tenancy as to the time of payment of rent, Spc. and misdescribe them, the variance will be fatal. 1 Chit. PL 229. Another illustration of the rule is given by the same author. Thus, a general freehold title, liberum ienementum, may be pleaded either in trespass or in an avowry in replevin, and under it the defendant may prove any estate of freehold, either in fee, in. tail, or for life; but if he state, though unnecessarily, a seizin in fee of a particular estate or interest, and the other side traverse the allegation, it must be proved as stated. “ There are instances,” says Mr. Chitty, “ of material matter being pledged with an unnecessary detail of circumstances or particularity. The subject matter of the averment is material and relevant, and the evil is, that the essential and immaterial parts are so iuterwoven, as to expose the whole allegation to a traverse, and the consequent necessity of proof to the whole extent to which it is carried in the pleading.

These citations may suffice to show what the rule is at law. It is insisted, however, by the counsel for the defeudant in error, that the averments as to the purchase from the heirs and distributees of the deceased Montgomery, may be rejected as surplusage, and that the defendant in error has a right in equity to have the account which he seeks, by virtue of the conveyance of the legal title from Buncker & Hazard to him of the three shares of stock. But we apprehend, that, assuming the allegations in the bill to be correct, Buncker & Hazard had no power to transfer an equitable right of action ; for the bill states, the shares were purchased mainly with the money of James Montgomery, deceased, and were actually transferred to him by delivery, and a power of attorney was made by the holder of the legal title to execute to him a conveyance thereof. The bill thus showing the equity, coupled with the certificates of the shares, to be in the deceased Montgomery, it may be well questioned whether any title would pass by the conveyance of Buncker & Hazard, while the certificates remained in the possession of James Montgomery, deceased, or of his representative. Be this as it may, it is perfectly certain the court of equity would never proceed to decree relief without having the owners .of the equitable interest, and who, in that court, are considered the real owners of the stock, before it. Were the practice otherwise, justice would be administered by halves — the rights of parties decided upon who have had no means of asserting them, and the defendant, who is compelled to obey the decree, is left to protect himself as well as he may, by future litigation. Story’s Eq. PL $ 72. But, as before stated, the averments here as to the purchase, and the manner of showing a derivative title, are material allegations, and without which the bill would be evidently bad. Mr. Daniell, in his able work upon chancery practice, thus states the rule as applicable to such averments: “ In pleadings at common law, it is held that in stating a derivative title, a party claiming by inheritance must show how he is heir, viz., as son or otherwise, and if he claims by añedíate, and not by immediate descent, he must show the pedigree. Stephens on Pl. 340. It appears to be right, upon every principle, that the same rule should be observed in bills in equity.” 1 Dan. Ch. Pr. 369. The same author, p. 363, lays it down that a plaintiff must not only show in his bill an interest in the subject matter of the suit, but he must also make it appear that he has a proper title to institute a suit concerning it, (Ld. Redesdale, 155;) for it very often happens, that a person may have.an interest in the subject matter, and yet for want of compliance with some requisite forms, he may not be entitled to institute a suit relating to it. For example ; an executor has a right to personal property of his testator, but he must prove the will before he can assert it. If he does not aver in his bill that the will had been proved, it is demurrable. Story’s Eq. PI. § 625; Cooper’s Eq. PI. 212; Humphreys v. Ingledon, 1 Pr. Wms. 753; Daniell’s Ch. Pr. 364. In the case before us, the plaintiff claims as a purchaser from the heirs and distributees. If we allow the averment to be sufficient, without showing how the two Montgomerys, as heirs and distributees, acquired the right to dispose of the stock, the defendant would have a clear right to defeat the bill by showing plaintiff did not acquire title in that way; that the said Montgomerys were not heirs or distributees; that no distribution had been made; or, that the complainant below was executor de son tort. How, then, can such averments be regarded as surplusage or immaterial, when the whole case may be made to depend upon them ? Suppose the defendant, having put in issue their heirship, had proved they were in no ways related to the decedent, could it be tolerated at the trial, to allow the complainant to offer proof that they were legatees? Why, the defendant might say, I have never before heard of such title. It was not in issue. I came prepared to defeat the title in issue by proving complainant had none, because none descended to his vendors as he averred. A will is wholly without the case, and proof concerning it irrelevant and: improper. But if the will had been set up, I could have defeated the alledged title, averred to be derived under that, in various ways: either by showing that it was surreptitiously obtained; was never recorded; was revoked, or, was not the will of the supposed testator. Now, it seems to result, if a court of equity were to allow such title to prevail, the party might be taken upon surprise — the case goes off upon a title never once indicated by the pleading, and which the defendant, by the well established rules of equity practice, could not have been allowed to controvert by proof. And if on the final trial, 'the cause is continued for amendment and proof upon the will, as is insisted should be done, even after the hearing upon error in this court, being defeated upon that title, he might in the same way set up a title by deed from the ancestor, and thus a complainant may, under this practice, take as many chances for success, as he may suppose he has grounds for setting up distinct titles. A chancery suit would rarely fail, under such a system, to cumber the docket for many years. We instance such examples as illustrating the principle, and not as otherwise applying to this case.

The authorities fully sustain the position, that where the complainant relies solely upon his title for the account which he seeks, he must show his title in the bill; and if he claim as a derivative purchaser, he must deduce his title regularly, and aver it correctly. An example is found in the case of Penny v. Hoper, Bunbury’s Ex. Rep. 115; Ib. 129, where the lessee of a lay improprietor filed his bill against an occupier for an account' of tithes, held, that as the right of the plaintiff depended solely upon his title, he must not only deduce it regularly, and the existence of the lease, but that the person from whom it is derived had tho foe. Lord Digby v. Meech, Bunb. 195; Danl. Ch. Pr. 370-1; Story’s Eq. PL 257, et seq. It also results, that being compelled to aver his title, he is required to prove it if put in issue, and proof of a different title than that averred will not sustain the bill.

We have devoted thus much space to this point, not because of any great difficulty involved in it, as we conceive, but because it is conclusive of the case in this court, against the defendant in error, and the contrary proposition has been urged with much zeal and ability upon our attention.

3. We proceed to state our conclusions upon the other points in the cause.

It is objected, that the proof shows the complainant, at the time he received these three shares from Montgomery, as also the share from the Kirkmans, was the agent of the trustees of the Cypress Land Company, to adjust its business and buy in the shares in the payment of debts due the company, at the rate of $475 per share, as well as attorney for the said trustees, in possession of the books and papers, and retained to attend’to the suits, &c., which should it be necessary to institute in the prosecution of the business; and it is insisted that he could not acquire an interest adverse to his principals, and that the purchase of the stock by him must be regarded as made for his employers, if he has shown a title to it, and to be paid for by them at the rate of $475 per share. It is well settled that an agent employmed by a trustee is accountable only to him and not to the cestui quo trust; and a sub-agent is ordinarily accountable to the superior agent who employs him and not generally to the principal. See Story on Ag. § 217, a, and authorities there cited. In this case there was no privity between the agent, Irvine, and the stockholders. He derived his authority directly from the surviving trustees, who were charged with the distribution of the proceeds of the trust according to the articles of association into which they had entered, and it was the duty of the complainant to have accounted with the trustees, and not with those who may have been the holders of certificates of stock. This duty the complainant recognized by tendering his account, but claimed the right to retain of monies collected by him, what he regarded the value of the shares placed in his hands by Montgomery, as the agent of Montgomery to collect what was justly due thereon, pending his agency for the defendants. We think the complainant could not, pending his agency for respondents, contract with the Messrs. Montgomery, any relation which would justify the withholding from his principals the funds he had received by virtue of his agency. “ The duty of thus guarding the interest of the principal, is not confined,” says Judge Story, “ to cases where the agent may sacrifice his interest by attempts to further his own; but the same particular policy extends to cases where the interests of strangers are sought to be asserted by the agent, adversely to those of the principal.” The agent cannot assert the right of third persons to defeat the demands of his principal, nor dispute his title. Com. on Ag. 255, § 217, and cases cited.

The same principle obtains both at law and in equity, so where an agent had collected money for his principal, he cannot be converted into a trustee for a third person by notice of his claim, but is bound to pay it over. Ib. 256; Nicholson v. Knowles, 5 Madd. Rep. 46; 2 Story’s Eq. § 317.

It is however replied by the counsel for the defendant in error, that there was nothing in the power of attorney given by McKinley, Jackson, Bibb and Pope, to Irvine, which directly, or by implication, denied to him the right to receive the shares as agent, or to purchase them upon his own account. The power under which complainant below acted, after reciting the authority of the trustees to appoint agents, &c., proceeds, “The trustees being desirous to bring toa close the affairs of said trust, to that end, and for that purpose, have appointed, and by these presents do appoint, Jas. Irvine, for them, <^c., to receive of and from the debtors of said company all sums that may be due and owing from the debtors of said company, and in default to bring suit therefor. We further authorize him to adjust, settle and compromise with all debtors to said company, under such regulations and orders in writing as John McKinley and James Jackson, the present acting trustees, may from time to time give, and upon payment made agreeable to such order, or otherwise, to execute and deliver in our names deeds with warranty, for all lands and town lots so paid for. We hereby ratify and confirm what he may do within the scope of his power, dated 10th Sept. 1834.” Signed, sealed, &c. It appears, that previous to the execution of this power of attorney, the complainant below, in connection with his then partner, had been the agents and attorneys of the trustees, and that one of the books delivered to them contained a resolution, dated 28th October, ’33, entered into by the trustees, authorizing “the stock of the Cypress Land Co. to be received at $475 per share, in the final settlement with purchasers of lots and lands belonging to the company.” It further recites, that although the acting trustees may lose by this arrangement, they have determined to subprit to it for the purpose of closing the business as speedily as possible. Which is signed by McKinley and Jackson, and the acting executors of John Coffee. Under the foregoing authority the complainant avers that he acted for several years, and “ made many settlements based upon the value set upon the stock by said resolution.”

Now, it is true, the agent has no direct authority conferred upon him to buy in the shares for the trustees,'but merely to receive them in liquidation of demands due the company at the price of $475, but does it follow that he may deal in such shares himself, pending the agency, or become agent for others, to enforce collection from his principals? We think not. Suppose, as an illustration of the rule, that the agent employed to settle the business, by receiving and procuring the cancellation of shares at $475, had himself, under a belief that the shares were worth more, purchased in the whole of them on his own account. It is most obvious the f design of his agency, and the object of his principal swould I have been defeated. The same principle holds good, if, instead of permitting them to circulate, and to get into the hands of the debtors to the company, he had received them as agent for the holder, to collect what he deemed due upon them. In either case, the principal object of the agency, the speedy settlement of the affairs of the company, which had been thrown into confusion by the destruction of the books, &c. by fire, would have been thwarted, and what is true of all, is equally applicable with respect to any less number of the shares; for as to them, the agency cannot be carried out. “ By the employment, the principal contracts for I the disinterested skill, diligence and zeál of the agent for his 1 exclusive benefit,” Story on Ag. <§> 210. He cannot act for his own benefit on the subject of the trust, so long as the fiduciary, or confidential relation exists, Greene v. Winter, 1 Johns. Ch. Rep. 26; Parkhurst v. Alexander, Ib. 394; Bank v. Collins, 7 Ala. Rep. 95. We feel constrained, ac-' cording to our view of the law, to declare, that under the proof in the case, the purchase made on the 19th July, 1836, of T. J. Kirkman, of an interest in the share numbered 390, by the complainant, must be regarded as made on bes half of his principals; and to hold that the funds due the trustees, could not be properly withheld for the payment of the three shares to Montgomery. The case does not rest upon the doctrine of resulting trusts from the use of the funds, in the purchase of the stock, but upon the well established law repectiug the powers and duties of agents.

4. But it is contended again, that the three shares were acquired after the termination of the agency, and that they are not affected thereby. We do not see how the bare fact of Irvine’s being the debtor to the trustee for monies collected as agent, can, after the termination of the agency, and when he is sued for the funds, constitute any impediment to the purchase by him of shares in the stock ; the disabilities of an agent grow out of the relation, and cease with it, but while he may purchase, a court of equity would not aid him in availing himself of such purchase to prevent a recovery at law by his principal, of monies collected by him as agent, and which he illegally withheld. In the absence of all intervening grounds of equity, such as removal, or insolvency, the court will not legalize the unlawful detention by stopping the funds in his hands. It is true, McKinley resides out of this State, but he so resided when complainant purchased the shares, and long before, as is shown by the bill and the proof, and complainant was fully advised of the fact when he purchased, having been his agent and attorney for many years. Under such circumstances, as against his liabilities for the funds in his hands, with respect to which his fiduciary relation still exists, a court of equity will not aid him.

5. The counsel for the defendant in error again insist, that the respondents should not be allowed to urge, that complainant could not purchase shares pending his agency, as the authority conferred to receive them at $A75 was an attempt to profit themselves at the expense of the cestuis que trust, and thus each party in turn invokes the rule, that a trustee shall not act for his own benefit and profit, in a contract on the subject of the trust. True, “ it would be an extremely wrong thing,” as the Lord Chancellor said in Norris v. Le Neeve, 3 Atk. Rep. 37, “ to permit a trustee to use the information he gains as such trustee, by purchasing in for himself.” See also, Green v. Winter, supra; 3 P. Wms. Rep. 249, n a.; Morrell v. Paske, 2 Atk. R. 52. He is considered as purchasing for the cestuis que trust, if he elect to avail himself of the purchase. But this record presents the case of trustees purchasing from the cestuis que trust, and although courts of equity regard such purchases with jealousy and suspicion, yet they are allowable if the purchaser make a full and fair disclosure, and take no improper advantage. Kennedy v. Kennedy, 2 Ala. Rep. 572; Johnson v. Johnson, 5 Ala. R. 90. The persons who have sold their shares are not the parties complaining, and it cannot be material to the interest of the complainant, whether the shares to which he lays no claim, are in the hands of the trustees, or of the original holders.

6. As to the expenses incurred by the trustees in the erection of a tavern and the public buildings for the county of Lauderdale, in the town of Florence, we do not think they can be placed to their credit in the accounting. There can be no question that such contribution of the funds tended greatly to increase the sale of the town lots, and perhaps the value of other property in the neighborhood of the town, but they were not warranted by the powers conferred on the trustees, by the articles of association under which they acted. The declaration of trust under which they acted, defines their powers with clearness, and nothing therein, either expressly or impliedly contained, could justify them in expending the trust money, or effects, in the erection of a court house, jail, clerk’s offices, or tavern. And although these im- • provements were doubtless made in good faith, yet it is established that a trustee shall only be allowed for necessary expenditures. “ It must be, and always has been the anxious wish of a court of chancery, to save a trustee from harm, while acting in good faith, but a misapplication of the trust property, by going out of the trust, can never be permitted to injure the cestui que trust without his consent.” Kent Ch.; Greene v. Winter, 1 Johns. Ch. R. 40; Fontaine v. Pillet, 1 Ves. jr. 337; Bostock v. Blackney, 2 Bro. 653; 2 P. Wms. 453; 3 Atk. Rep. 441; Findley v. Wilson, 3 Litt. Rep. 393.

It is proper to remark however, that the trustee should on-' ly be charged with the value of the tavern lots at the time of sale, and not the amount increased by the improvements. If the owner of the shares at the time these expenditures were being made, gave his consent to this appropriation of the funds by the trustees, or if his consent could be implied from his silence, were he present and fully advised of the action of the trustees in that behalf, and interposing no objection, it is clear he would be estopped from insisting the loss should fall exclusively on the trustees, but his interest would be taxed with the loss pro rata, and this equitable right to contribute would follow his shares, and attach to them in the hands of his assignee. But we have carefully examined the evidence, and do not think it furnishes any authority for saying the shares are thus affected.

7. The chancellor also erred in permitting the witness, Pope, to give evidence at the hearing of the power of attorney from Buncker and Hazard to Montgomery, which complainant, as a subscribing witness thereto, had, by his voluntary act rendered himself incapable of proving. Bennet v. Robison, 3 Stew. & P. R. 227; 3 Phil. Ev. C, & H’s Notes, 1267. Besides, it was not proper to receive viva voce proof at the hearing, without reasonable notice to the opposite party that such proof would be offered. Consequa v. Fannin, 2 Johns. C. Rep. 483-4; Emerson v. Buckley Stone, 4 H. & Munf. Rep. 441.

8. To render the bill formal, and make the adjudication decisive of the interest of all the parties concerned, it is proper that all the persons who signed the declaration of trust, and who have participated in its execution, or their personal representatives, if1 they are dead, should have been made parties. They may be interested in several ways, and especially as respects the misapplication of the trust funds to the erection of public buildings, &c. Story’s Eq. PI. § 209. If however, it should appear that the parties who have not been joined, are in no wise connected with the suit, not having taken upon themselves the execution of the trust, and that their interests are not to be affected by the decree, there would be no necessity for making them parties. But where a suit is brought to enforce a trust, and there are divers trustees, they should all be made parties; for all of them, says Judge Story, have a community of interest, and otherwise there might be different suits brought against each trustee. Eq. PI. § 210. We suggest whether the character of the bill in this case, is not different from a bill exhibited against one of several trustees, who are implicated in a common breach of trust. Story’s Eq. 213; Munch v. Cockrell, 8 Sim. R. 219.

It is unnecessary to remand this cause, as we have satisfactorily shown, we believe, that were the party allowed to amend his bill, and aver a title derived through a devise by James Montgomery, it would make a new case, because it would amount to the assertion of a different agreement, or title, than ‘the -one set up in the present suit. Besides, after the proof on both sides has been taken, and the cause finally heard, it is too late to amend. The rule has never been carried so far within our knowledge as to permit a party under such circumstances, to amend as to substantial averments respecting his title. The statute authorizing the court to permit amendments any time before the hearing does not embrace the case. But this point is concluded by the adjudications of this court — Bryant v. Peters, 3 Ala. Rep. 171; Evans v. Bolling, 5 Ala. 555. See also, Story’s Eq. PI. § 336, 614, 886; Mit. Pl. by Jeremy, 55; Lube’s Eq. PL 62 ; 1 Daniell’s Ch. Pr. 478. The rule is less stringent in respect of parties, and the court may permit amendments as to clerical mistakes upon the trial. Gill’s heirs v. Cummings’s heirs, 6 Ala. Rep. 564; 2 Sch. & Lef. 11; Rugely v. Harrison, 10 Ala. Rep. 746.

The decree of the chancellor is reversed, and a decree is here rendered dismissing the bill. Let the plaintiff in error recover the costs of this court and of the chancery court.