(dissenting.) — I am of the opinion that the decree is for the wrong party. Appellants and *63appellee claim title from a common source, James P. Lacey. Appellants claim as heirs, and appellee claims as purchaser through a bankrupt sale.
It is admitted that the records of the bankrupt court show no assignment of the land in question to the assignee by the bankruptcy court. Without such assignment it is admitted that no title could pass. The recital of such assignment in the assignee’s deed is not sufficient. An agent or trustee cannot bind his principal or cestui que trust by recitals in conveyances of the trust property that he is authorized to convey. If this be true, a trustee or assignee can always confer authority on himself to make any property trust property, and then authorize himself to sell and convey it. The trustee or assignee is the creature of the trust, and not the creator of it or of his own authority to convey it. The purchaser has never been in possession, so no rule of prescription can apply, such as to authorize the court to presume against the record that the bankrupt court assigned the laud in question to the assignee.
The appellee in this case is in my judgment in very little better position than if there had been no bankruptcy proceedings, and it claimed under an assignee’s deed, which recited that James P. Lacey had conveyed to the assignee. If there had never been any possssion under such deed, surely the court would not hold that it would be presumed that Lacey had conveyed to the assignee, for the reason that the deed so recited. Lacey, the common source of title, being in possession, and there being no evidence of a change of possession, I think the only presumption which should be indulged in this case is that Lacey’s heirs have been in possession of this land since his death, and therefore have the title. I cannot understand how a presumption can be indulged to thus defeat the heirs, when it is conceded that the *64records and the evidence fail to show that the title ever passed out of the ancestor except by an unauthorized presumption. If the title never passed out of Lacey, it is not claimed that it has ever passed out of his heirs, because it is not claimed that they ever conveyed or that there has ever been any adverse possession as against them. The title could not be in abeyance or in nubibus, and must have been in the heirs.
Is it not more reasonable to presume that the record speaks the truth, and that the purchaser did not go into possession, or assert or claim title, because he had'none, than to presume that the record is imperfect, and that the purchaser was guilty of laches of the grossest kind for 40 years, and thereby acquired title by his own laches?