There is a motion to dismiss the appeal because, first, the certificate of the clerk and register shows that the transcript is of a case late pending in the law and equity court of Lee county, and that the record shows the judgment appealed from to have been rendered in the circuit court of Lee county; and, second, because the transcript was not filed during the term to which the appeal was returnable. The acts establishing the law and equity court and providing for the transfer of causes, etc., thereto from the circuit court, take the point out of the first ground of the motion. The second ground of the motion cannot be sustained, because the citation of appeal was not served on the appellee until after the expiration of the term to- which the appeal was returnable, and the delay in such service does not appear to' have been the fault of the appellant.'
The action is to recover the penalty for willfully and knowingly cutting trees on land of the plaintiff (appellant. ) The court below excluded the conveyance offered to show title in the plaintiff, and this°on the sole ground that the legal title vested thereunder in the trustee named in the instrument. The conveyance created only a dry, naked trust, raised no duties for the trustee, and hence, under our statute (Code 1896, § 1027, and its predecessors) vested in the beneficiary, the plaintiff, the legal estate in the real estate conveyed. — You v. Flinn, 34 Ala. 409; Jordan v. Phillips, 126 Ala. 561, 29 South. 831. There can be no doubt that the grantors intended Mary Prince to be the beneficiary under the conveyance. This was error, to reverse the judgment below.
It is insisted that, though this ruling was error, it was error without injury, because the affirmative charge *117was due defendant- on account of a variance in respect of the allegation that the lands from which the trees were cut was the Ellis Prince place, whereas, the proof tended to show it was the George Prince place. The exclusion of the deed on the ground before stated, in effect, put the plaintiff out of court, so far as a. recovery then was concerned. The rule of error without injury has no field of operation under such circumstances. If so, any vital ruling on a trial would lead to affirmance, in consequence of a condition made by the erroneous ruling itself. It might be that the next step for plaintiff would have been to show that the place was known as the Ellis Prince place, in accord with the description set out in the complaint'; hut with her evidence of title excluded she could not proceed.
The judgment is reversed, and the cause remanded.
Reversed and remanded.
Dowdell, G. J., and Anderson and Sayre, JJ., concur.