The appellee now asserts that his right to maintain the bill was not rested upon the fact that he was named as the trustee in the deed of trust executed by the Flour Grain Company, but solely on the fact that the bonds were delivered to him for the purpose of filing and maintaining this bill, and as a predicate for this contention, refers to the averments of the bill: "Theowners and holders of said unpaid bonds, whose names are hereinafter set forth, have delivered them to complainant as their trustee with authority to bring this suit in their behalf and for their benefit. The names of such owners and holders are as follows, the principal amount of bonds held by each being set opposite to their names, respectively." These averments are followed by a list of the owners and holders and the principal amount due each. (Italics supplied.)
Mr. Marx, the complainant, testified: "The owners and holders of said unpaid bonds have delivered them to me as their trustee with authority to bring this suit in their behalf and for their benefit. To the best of my recollection, the names of theowners and holders of the sixty-seven unpaid bonds together with the amount of the bonds owned by each are correctly set forth in paragraph four of the bill of complaint." (Italics supplied.)
These averments and this proof clearly negative the idea that said bonds were delivered to Marx for the purpose and with the intent of investing him with the title, legal or equitable, thereto, or any beneficial interest therein. These averments and this evidence show that the named bondholders have the legal title to the bonds, the indebtedness represented by them, and are the sole beneficial owners thereof.
It is essential to the existence of a trust in property that the legal or equitable title be in one person with the benefit and use to another. Where one person has both the legal title and the beneficial ownership, there is no trust. 26 R. C. L. 1167, § 1.
In Carey et al. v. Brown, 92 U.S. 171, 23 L.Ed. 469, cited by appellee in his brief on application for rehearing, the notes were transferred to the complainant so as to invest him with the legal title, and the bill so averred.
In Hall Farley, Trustees v. Henderson, 126 Ala. 449,28 So. 531, 61 L.R.A. 621, 85 Am. St. Rep. 53, the Farley National Bank, to whom the property had been restored by order of the Comptroller of the Currency, and the receiver discharged, "assigned and transferred to the complainants, J. L. Hall and L. B. Farley, as trustees, the said debt of the Alabama Terminal Improvement Company," investing them with the legal title thereto. Henderson et al. v. Hall et al., 134 Ala. 455,32 So. 840, 63 L.R.A. 673. It may be noted, also, that before the litigation was concluded, the eminent lawyers representing the complainants made the judgment creditor, the cestui que trust, a party complainant. See Henderson v. Hall, 134 Ala. 455,32 So. 840, 63 L.R.A. 673.
A "naked power" — a power not coupled with an interest — does not authorize the person upon whom it is conferred the right to prosecute an action a law, nor a suit in equity. Therefore, if it should be conceded that a trustee may in any case maintain a bill under the statute to have a conveyance declared a general assignment, the complainant here has not shown such right.
The complainant not being entitled to maintain the bill, the other questions argued need not be considered.
Application overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.