Cresswell's Adm'r v. Jones

SOMERVILLE, J. Whether an erroneous ruling on a demurrer is such an error of law apparent on the record, as would authorize resort to a bill of review, is a question of grave doubt, which has never been decided bv this court. Its solution is not necessary to a decision of this cause, and [423] we therefore give no opinion upon it. For a general discussion of the grounds justifying bills of review, we refer to the following authorities.—McDougald v. Dougherty, 39 Ala. 409; Brewer v. Bowman, 3 J. J. Marshall, 402 [s. c., 20 Amer. Dec. 160-175, note]; Bernadatti v. Sexton, 2 Tenn. Ch. 699; Perry v. Phillips, 17 Vesey, 178. We are of opinion that the chancellor erred in overruling the demurrer, and in refusing to dismiss the bill of review in this case. There was no error of law apparent in the record of the original proceedings sought to be reviewed. The decree in that cause seems to be correct. The whole equity of Mrs. Cresswell’s bill turned on the proper construction of the deed of January 22,1846, made by Justina Walton, and conveying the land in question to complainant’s husband, Samuel L. Cresswell. This was before the existence of any “married woman’s law” in Alabama. The conveyance was made to the husband directly, without any special words describing him as a trustee. Yet the consideration recited, in addition to a nominal one of ten dollars from the grantee, is the love and affection borne by the grantor to her daughter, Mrs. Cresswell. The declaration of the deed, however, is, that the land is intended as “ an advancement ” to Mrs. Cress-well,- and as a “part of her distributive share ” of the grantor’s estate. The intention of the parties is the key of every written instrument. These words show, that no fee-simple title was intended to be vested in Cresswell. It was clearly intended for the use and benefit of the daughter, his wife. It is often said that no particular formality is required for the creation of a trust. If it appears to be the intention of the parties, from the whole instrument creating it, that the property conveyed is to be held or dealt with for the benefit of another, a court of equity will affix to it the character of a trust, and impose corresponding duties on the party receiving the title. It is not necessary to use the words upon trust, or trustee, if the creation of a trust is otherwise sufficiently evident.—1 Perry on Trusts, §§ 82,158; Marsh v. Marsh, 43 Ala. 670. It is said in Perry on Trusts, § 151, that “ no general rule can be stated, that will determine when a conveyance will earry with it a beneficial interest, and when it will be construed to ereate a trust; but the intention is to be gathered, in each ease, from the general purpose and scope of the instrument.” The other questions, sought to be determined in this case, not having been definitely raised by the pleadings, and specifically ruled on by the court in the original cause, are not a proper basis for a bill of review. The error, if any, was such [424] as should have been corrected by appeal.—Noble v. Hallonquist, 58 Ala. 229. The trust created by this deed in favor of Mrs. Cresswell was an express, and not an implied one. The instrument was duly recorded as required by law, and all purchasers were charged with notice of the defect in the title, because disclosed on the face of the deed itself.—Corbitt v. Clenney, 52 Ala. 480; Prince v. Prince, 67 Ala. 565. The decree of the chancellor is reversed, and judgment is here rendered dismissing the bill of review filed in the cause by the appellees, at their costs.