(Dissenting in Part). Using the same designation of the deeds as contained in the majority opinion, I make the following observations :
Deed No. 1 was a regular warranty deed from J. R. Vaught and wife to “Granville Jones, Isaac J. Jones and Granville Cubage, Trustees,” dated September 3, 1923. There was nothing in this deed to show the.purpose for which the grantees were trustees, and so there was nothing to' show that the deed violated the rule against perpetuities, or any other rule. I maintain that these grantees became seized with the legal title in trust for whomsoever the evidence might establish to be the beneficiaries. Under our State (% 50-412 Ark. Stats.), any conveyance executed by these trustees to a third person innocent of the trust would pass a good title. But the evidence here shows that there was no conveyance to any such innocent third person.
Deed No. 2 was from the three trustees (grantees in Deed No. 1) to Isaac J. Jones, and was dated September 16, 1924. The grantee was one of the three trustees; and the evidence shows beyond question that the sole purpose of this deed was to empower Isaac J. Jones to borrow some money to improve the trust property, and that no such loan was ever consummated. I maintain that the evidence establishes that this deed was in equity no more than a power of attorney and could be cancelled in this suit and the title reinvested in the grantees in Deed No. 1.
Deed No. 3 and Deed No. 4 were both dated and executed the same day, May 28, 1927. In Deed No. 3 Isaac J. Jones and wife conveyed the land to Granville Jones. The grantor, Isaac J. Jones, and the grantee, Granville Jones, were two of the trustees who were grantees in Deed No. 1. Each of them knew that Deed No. 2 conveyed no title to Isaac J. Jones except to obtain a loan, and each of them knew that no loan was obtained and that the title still rested in the three trustees who were the grantees in Deed No. 1. So I insist that Deed No. 3, in truth and in fact, conveyed nothing.
Deed No. 4 •— executed contemporaneously with Deed No. 3 — was from Granville Jones and wife to ‘£ Granville Jones, Isaac J. Jones, Arthur Jones, Claude Jones and Gilford Jones, as trustees for themselves and other lineal descendants of Drs. A. B. Clingman and Alfred Jones.” In this Deed No. 4, Granville Jones attempted to reserve certain rights to himself and wife, said attempted reservation being as follows:
“But specially reserving to grantors, Granville J ones and J essie Lyon J ones, all profits arising from concessions, summer resort privileges, and other commercial and industral use of said land and of a dam and lake thereon known as ‘Sylvan Lake,’ and other improvements heretofore placed on said land of Granville J ones, together with any future improvements incident to such use as a summer resort, when such improvements shall have been approved by a majority of the grantees as such trustees, conditioned that no sale, transfer, or assignment of these reservations, privileges and sources of revenue shall be made by the said Granville Jones and Jessie Lyon Jones, or either of them, without the approval of a majority of said trustees expressed in writing. ’ ’
I maintain that since nothing passed by Deed No. 3, then Deed No. 4 is a nullity and that all attempted “reservations” by Granville Jones and wife were and are nullities. The net result is that the title still rests in the grantees in Deed No. 1. This result disposes of all claims under the will of Granville Jones and all claims under the deed from Jessie Lyon Jones to Claude Jones, and likewise nullifies Deed No. 5.
Deed No. 5 was dated May 15,1954: the grantors were Gilford Jones, J. Granville Cubage, Robert Highsmith, Herbert Chandler and Mrs. Lee J. Chandler, as trustees in succession to the trustees named in Deed No. 4. These grantor trustees claim to be the owners of the property by virtue of Deed No. 4; but with Deed No. 4 a nullity — as hereinbefore mentioned — the grantors in Deed No. 5 had nothing to convey. The grantee in Deed No. 5 was “the Clingman-Jones Family Corporation.” The majority opinion holds that this Deed No. 5 is void as violative of the rule against perpetuities. That may be true; but the better reason — as I see it — is that the grantors in Deed No. 5 had no title to convey because they had received nothing by Deed No. 4.
Now, with the foregoing observations made, it is evident that I regard the legal title to still be in the grantees in Deed No. 1, or the surviving one of such grantees. Therefore, this suit is simply a suit to have a trust declared and enforced against the surviving trustee in Deed No. 1. Thus, if my opinion prevailed, the work of the Chancery Court on remand would be considerably simplified because, as I see it, Jessie Lyon Jones never had any “bare legal title” or any other kind of title, and all the Chancery Court needs to do on remand is to determine the trust created by Deed No. 1 and enforce it; or proceed to partition the property, if the trust be violative of the rule of perpetuities.