Ejectment, instituted by appellants against appellee, tenant under Mrs. Irene Talliaferro, to recover business property in the town of Evergreen. The general affirmative charge was given for defendants, appellees, and nonsuit was thereupon suffered by plaintiffs.
The case was tried by the judge of the Second judicial circuit. After the trial, and before the bill of exceptions was signed by the judge who presided at the trial, the Legislature took Conecuh county (the place of trial) out of the Second circuit and constituted it a part of the Twenty-First circuit. There is a motion by appellees to strike the bill of exceptions, on the ground that the judge of the Second circuit was thereafter without power or authority to efficiently settle and sign the bill of exceptions; the argument being that, within the purview of the amendatory act approved September 25, 1915 (Gen. Acts, p. 816), this judge's term had expired by operation of law, because of the change of Conecuh county from the Second to the Twenty-First circuit. The theory of the motion is ill-founded. The power to settle and authenticate bills of exceptions is conferred on the judge who presided at the trial, not on the court in which the trial was had. The judge who presided at the trial is still a circuit judge. His term of office has not expired by operation of law, as was the case with respect to the judge whose status was considered by the Court of Appeals in Thacker v. Selma, 16 Ala. App. 345,77 So. 939. The motion to strike is overruled.
Since both parties to this cause trace their asserted titles to the lot in question to a common source, each of them is estopped to impeach that title. Pendley v. Madison, 83 Ala. 484,3 So. 618, among many others. There was, hence, no obligation on the plaintiffs to show that title to the lot had passed out of the government.
In 1865 the lot in litigation was owned by the Lymans. For a recited valuable consideration paid by Isaac G. Smith, *Page 346 trustee, they (1865) conveyed it to Isaac G. Smith in trust, as appears from the deed to be now reproduced, in material parts as follows:
"* * * Hereby sell, convey, grant and deliver unto the said Smith, in trust for said Epsie A. Coker, for the period of her natural life, and then to the heirs of her body, the certain issue of her marriage with the said Thomas H. Coker, to her and their sole and separate use, benefit, and behoof forever, the following messuage or tract or parcel of land, * * * together with all the appurtenances thereunto belonging or in anywise appertaining, to have and to hold the aforegranted premises unto the said Smith, in trust as aforesaid, for the sole and separate use, benefit, and behoof of the said Epsie A. Coker, and the heirs of her body by said T. H. Coker in fee simple. And we, the said Pius C. Lyman and his wife, C. F. Lyman, do hereby covenant and agree with the said Isaac G. Smith, trustee as aforesaid, that we are lawfully seized in fee of the aforegranted premises, that they are free from all incumbrances, and that we have a good right to sell and convey the same to the said Smith in trust as aforesaid, and that we will warrant and defend the same unto the said Smith, as trustee as aforesaid, as well as any one claiming under and through him against the lawful demands of all persons whatever."
Epsie A. Coker died in 1912. Thomas H. Coker, her husband, died 3 or 4 years before his wife. This action was instituted in 1918. The plaintiffs are children of Epsie A. Coker and her husband, T. H. Coker. Mrs. Talliaferro, a defendant appellee, claims through mesne conveyances running back over 40 years to mortgages executed by the trustee, Isaac G. Smith, and Epsie A. and T. H. Coker, to Stallworth and others, and foreclosed under the power in 1868.
Unless defeated in its effect by the provisions of section 1306 of the Code of 1852 (section 3408 of the Code of 1907), reproduced below, this deed from the Lymans to Smith, trustee, invested the trustee with the fee to the property therein described; those described as beneficiaries of the trust including any children born of the then existing and long continuing matrimonial status of Epsie A. and Thomas H. Coker. Until their wedlock was dissolved, contemplated beneficiaries of the trust — in addition to those present when the trust was created in 1865 — could have been born to receive the benefit thereof. Section 1306 of the Code of 1852 read:
"Sec. 1306. No use, trust, or confidence can be declared of any land, or of any charge upon the same, for the mere benefit of third persons; and all assurances declaring any such use, trust, or confidence, must be held and taken to vest the legal estate in the person, or persons, for whom the same is declared, and no estate, or interest can vest thereby in any trustee."
Following what was found to be the necessary implication from the observation made in McBrayer v. Cariker, 64 Ala. 50, it was decided in Edwards v. Edwards, 142 Ala. 267, 273, 274,39 So. 82 (its declaration being approvingly repeated in Kidd v. Cruse, 200 Ala. 293, 295, 76 So. 59), that the reposit of the title in the trustee during a period pending which any of the contemplated beneficiaries of the trust may come into being distinguishes such a trust from a "naked, dry, or passive trust," upon which character of trust the statute visits its effect to pass the title in fee reposed in the passive trustee to the cestui que trust. Gindrat v. West. Ry. of Ala., 96 Ala. 162,165, 166, 11 So. 372, 19 L.R.A. 839, and cases there cited.
The application of this long-established principle to the deed of the Lymans to Smith, trustee, requires the conclusion that the instrument creating the trust and defining its beneficiaries was not subject to the transmissive effect of section 1306 of the Code of 1852 (Code 1907, § 3408); this trustee, independent of any other considerations, being inescapably charged with the duty to remain the repository of the legal title until it was finally determinable, upon the dissolution of the wedlock of the Cokers, who were the beneficiaries of the trust unmistakably created by the instrument — the granting clause prevailing over the habendum in cases of conflict between them. Porter v. Henderson,203 Ala. 312, 82 So. 668, 671.
It results that the instruments of conveyance by this trustee, conveying the legal title to the property, were breaches of the trust binding him in the premises, and that thereafter the holders of the legal title thus conveyed were subject to the equitable principles consequent upon the coming into existence of a constructive trust, as distinguished from the express trust that the breach by the trustee had terminated. Smith v. Dallas Compress Co., 195 Ala. 534, 538,539, 70 So. 662, citing many earlier statements of the doctrine.
Since in this action at law the legal title was due to prevail, the court below did not err in giving the general affirmative charge requested for the defendants.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
On Rehearing.