70 So. 662 | Ala. | 1915
The original bill in this cause was filed by the appellant against the appellees. It sought to have the
When appellant was about one year old his mother, the trustee named in the antenuptial contract, conveyed to one Ikelheimeir. The claim of appellees is traced through Ikelheimer., The trustee had no power to convey at the time she attempted to convey to Ikelheimer. The trust established by the antenuptial contract was breached by the conveyance made by the trustee, and Ikelheimer and those claiming through him had notice of the breach. On the former appeal (190 Ala. 423, 67 South. 289) the complainant’s estate in remainder in the land in question was confirmed, thus affirming the ruling of the chancellor in overruling the demurrer to the original bill as a whole, and also affirming the decree of the chancellor in sustaining the demurrer to that part of the bill which sought to recover maintenance and support out of the rents and profits of the land. With reference to the latter feature of the bill, it was then said; “Conceding that complainant might in his present circumstances fix a charge upon the land if it were still held by his mother, which seems doubtful (Berry on Trusts, § 118), still he has lost that right by the adverse holding of defendants. The right of support and maintenance out of the rents and profits of the life estate which complainant now asserts has been neglected from the time of the purchase by defendants more than 30 years before the filing of this bill, and for more than 10 years of this time complainant has been of age. The purchase by defendants,' their entry, and their adverse holding during this period was notice to the world of their repudiation of complainant’s right, and he is now barred. —Code, §§ 3091, 4846; Nimmo v. Stewart, supra [21 Ala. 682];
It has been long settled in this state, whatever may be the rule elsewhere prevailing, that a constructive trust thus created may be barred by the lapse of time. — Authorities, supra. The obligations imposed by law upon the purchaser from a trustee of an express trust are the same as were the obligations imposed by the express trust upon the express trustee, and these obligations the purchaser with notice will be compelled to satisfy at the seasonable suit of the cestui que trust; but, as the above-cited authorities conclusively establish, the character of trust is changed when the original trustee conveys in violation of the trust to the purchaser who is informed that the subject of the conveyance is impressed with an express trust. It results from these considerations that the declaration above quoted from our former opinion in this cause is applicable to the case made by the amended bill, and requires, in consequence, the affirmance of the decree sustaining the demurrer to the bill as amended.
Affirmed.