Roman v. Long Distance Telephone & Telegraph Co.

DOWDELL, J. The appeal in this case is taken from the decree of the chancellor sustaining the demurrer to the bill and dissolving the temporary injunction. It appears from the record that the cause was submitted in term time for decree in vacation on the demurrer to the bill and on motion of respondent to dissolve the temporary injunction, and by agreements of parties the 7th day of October, 1905, at Decatur, Ala., was set as the time and place for the argument of the cause by counsel. The respondent by its sworn answer denied the title and ownership of the complainant .of the lands described in the bill. At the hearing on October 7th the complainant, in support of the averments of the bill, offered certain affidavits and a copy of the deed made by the register in chancery to the complainant. The respondent objected to the introduction on the hearing of said affidavits and said copy of deed. The chancellor sustained the objection of the respondent and refused to consider, the affidavits and copjr of deed, and, on the denials in the sworn answer, dissolved the injunction. As stated above, the respondent, in its sworn answer, denied the title and ownership of the complainant. Under the rule laid down in Barnard v. Davis, 54 Ala. 565, which is but a reaffirmance of the rule of practice in injunction cases, it was not competent for the complainant, on the hearing, of the motion to dissolve the temporary injunction on the denials in the sworn answer, to support the averments of his bill as to title and ownership by ex parte affidavits. Moreover, if it had been competent to do so, the offer to do so here was not seasonably made and on timely notice. While the ruling on the demurrer is assigned as error, this assignment is not insisted on in argument, and for that reason we might decline to notice it; but, as the ques [393] tion might be again raised on an appeal from the final decree, we deem it proper for that reason to consider it. The hill is not sufficient in its statement as to the trusteeship of the complainant. For aught that appears, the trust may he a naked trust, without any-duties for the trustee to perform. In such case the legal title of the property conveyed in trust would vest in the cestui que trust, and the alleged trustee -would not be the proper party to maintain the bill. On the other hand, if it should appear that the tiust created was not a naked trust, hut an active one, the cestui que trust would not he a necessary party to the bill, as no question in the character of the hill here filed would arise between the trustee and the cestui que trust. The trustee, being clothed with a legal title and with-active duties to perform, would he authorized, as it would he his duty, in his own name as trustee to protect the property of the trust by legal proceeding's as well as otherwise. We find no error in the record, and the decree appealed from will be affirmed. Affirmed. Weakley, O. J., and Simpson .and Anderson, JJ., concur.