By way of reply to appellant's argument on rehearing, which lays its stress at a new point, we add the following brief elaboration of what has in effect been said heretofore: Upon analysis the argument against the opinion in this cause simmers down to just this: "The deed by the auctioneer to Martin must be eliminated as a void paper, because the auctioneer was a special agent" — by which, as the context shows, appellant means that he was a special agent for herself — "with no estate, and without power to convey," meaning without power to convey unless and until the amount of the bid was paid to appellant. There is no question that Martin held the legal title to the land in trust for appellant, and if this controversy were between appellant and Martin, appellant's premise, stated above, would need to be conceded, and thereupon appellant's conclusion would follow; but, unfortunately for appellant, that is not the true posture of the case, for while Martin, as between appellant and himself, if we could view the case from that standpoint exclusively, would be held to have acted throughout as trustee for appellant, still it cannot be denied that, under our decisions, he as assignee of the mortgage held the legal title to the land. Welsh v. Phillips,54 Ala. 309, 25 Am. Rep. 679. And, in virtue of the arrangement into which he had induced appellant to enter, to every appearance he held that title free of any equity in appellant. He needed no other title; but, if he did, he got it by purchase at the foreclosure, where, in legal effect, he, or the auctioneer of his appointment was "empowered and authorized to make and execute a deed to the purchaser in the name of the mortgagors," as was done. Nor did it make any difference that he paid no money to the auctioneer, for he was empowered and authorized to purchase as a stranger, thereby, to the extent of his bid, satisfying the debt which appeared to have been assigned to him. The power to sell was a power coupled with an interest, passing by assignment (Code, § 4896; McGuire v. Van Pelt, 55 Ala. 344, 4 Ann. Cas. 58), and its execution was sufficient to vest the legal title in the purchaser; but it carried no notice of the underlying equity. For the title vested in Martin, whether by the mortgage or its foreclosure, appellee paid the price, acting on appearances, or what would have appeared, had he gone to the public records. Appellant had been a party, a willing, though deluded, party, to the train of transactions by which the legal title in Martin had been clothed with every appearance of true and exclusive ownership. She had thus lent the credit and currency of her name and signature to the wrong perpetrated by Martin, had enabled him to set up a sign by the way for the misleading of every inquirer as to the title, and appellee, without notice of anything to the contrary, invested its money in the title thus presented to view. The result is that either appellant or appellee must suffer a loss, and we violate no known "code of laws" when we hold that, since appellee purchased the legal title from a trustee in good faith and for value and without notice, it should be protected against the claim of the beneficiary and allowed to hold the property free from the trust. 2 Pom. Eq. Jur. (4th Ed.) § 770. This rule, and its application to the undisputed facts shown by the record, puts into operation and effect two of the paramount principles of equity, viz.: Where there is equal equity the law must prevail; and where one of two equally innocent persons must suffer from the fraud of a third, he who first trusted must first suffer.
Application overruled.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.