Jordan v. Phillips & Crew Co.

DOWDELL, J. The deed attached as exhibit “A” to the bill and under which the complainants set up their claim as ccstuis que trust, has some novel features. There is no averment in the bill as to how the estate in the-lands in question was held prior to and at the time of the execution of this deed. The instrument purports to be a conveyance by a partnership in the partnership name of J. Jordan & Co., but proceeds to set out the names of the individuals composing the firm, to-wit, Junius Jordan and E. Rosa Simonton, and is executed in the name of the partnership, J. Jordan & Co., and the individuals Junius Jordan 'and F. Rosa Simonton, and J. H. Simonton, the husband of Rosa, joining in the execution. The conveyance of the title is to Junius Jordan us trustee for F. Rosa Simon-ton and other named parties upon a .recited consideration of five hundred dollars from the said Junius Jordan to the grantors. The partnership J. Jordan & Co. not being a legal entity, it could neither hold nor transmit by conveyance the legal title bo land. If the land was partnership property the legal title to same rested in the individuals composing the firm as tenants in common. As a valid deed conveying the legal title in the land it must, therefore, rest upon the fact of its execution by the individuals composing the partnership. We have then the case presented, of two grantors, each owning an undivided moiety in the land, conveying the whole to one of the grantors in trust for the other grantor and certain third parties named in the deed, 'that a person cannot at the same time be grantor and grantee in a conveyance of the legal title to land, is obvious. ’ The effect, therefore, of the conveyance by Junius Jordan is a declaration by him of a trust in the land for the benefit of third parties merely, and under the statute of uses, operates a conveyance of both legal and equitable estate owned by him in the land to such third parties. When considered with reference to F. Rosa Simonton, the conveyance being “to Junius Jordan as, trustee for F. Rosa Simonton” -and other parties named, imposing no active duties upon the trustee, simply making him the repository of the legal title, the trust created by the deed [567] is nothing more than a dry naked trust, and likewise under the statute operates to convey the estate both legal and equitable to the persons named as beneficiaries. Code, 1896, § 1027; You v. Flinn, 31 Ala. 409; Connell v. Cole, 89 Ala. 381. The poAver mentioned in the deed folloAving after the habendum clause is personal to -the grantee, resting merely in his discretion. It is coupled Avitli no duty expressed or implied in the contract or conveyance requiring of him its exercise. No duty being imposed by the deed, there Avas nothing to intercept the vesting of the legal title in the cestui que trustent, at the time of its execution, under the statute of uses. Haifing then no title, legal or equitable, to convey, the deed he made to the appellees passed no title to them, unless it can be deduced through a valid execution of the power to sell. The averments of the bill are that the trustee “unlawfully and in violation of his trust” conAreyed said property to pay his individual debt. This not being a sale and conveyance in execution of the power, the deed is void at laAv and passed no title to the grantees.—Russell v. Russell, 36 N. Y. 581; 27 Am. & Eng. Encyc. Law, p. 232. From the AdeAV which Ave have taken, it is manifest that Junius Jordan had no legal title under the pretended trust, deed, which he could convey to the respondent Phillips & Crew Company, and the purpose of complainants’ bill being the divestiture of the legal title to the lands passing by said deed, out of the said respondent and a vestiture of the same in the complainants, it is without equity. For the reeoArery of the possession of the land, as Avell as for recoArery of rents or damages for use and occupation, the complainants have a complete and adequate remedy at laAv. There aauas no error in sustaining the demurrer to the bill, and the decree of the chancellor must be affirmed.