Opinion
8 Div. 352.
October 20, 1921. Rehearing Denied November 17, 1921.
Appeal from Circuit Court, Limestone County; O. Kyle, Judge.
W. R. Walker, of Athens, for appellants.
The trustee became a stranger to the trust by buying and going into a court of competent jurisdiction, and having the sale ratified and confirmed, and, in the absence of fraud in the rendition or procurement of the decree, the decree is binding. 74 Ala. 604; 205 Ala. 230, 87 So. 349. In any event the purchase was only voidable, and, if allowed to remain for a long time after knowledge, will be held to have been acquiesced in. 143 U.S. 224, 12 Sup. Ct. 418, 36 L.Ed. 134; 41 Ala. 693; 4 Port. 293, 30 Am. Dec. 525; 5 Ala. 90; 9 Ala. 959; 14 Ala. 147; 23 Ala. 219; 36 Ala. 354; 128 Ala. 209; 55 Ala. 525; 29 Ala. 367; 36 Ala. 433; 105 N.Y. 167, 11 N.E. 380. Some of the defendants to the former suit are barred by the statute of limitations to seek relief now, and the infant defendants cannot be granted relief. 84 Ala. 349, 4 So. 182. In the absence of collusion with the trustee by the purchaser, or knowledge of his intentions to waste the trust fund, the remainderman is bound by one who purchases in good faith from the trustee, having the power to sell. 162 Ala. 448, 50 So. 223. The remaindermen are bound to do equity. 80 Ala. 11; 111 Ala. 188, 18 So. 292, 56 Am. St. Rep. 38; 130 Ala. 502, 30 So. 517; 169 Ala. 648, 53 So. 830. The present attack is a collateral attack. 117 Ala. 454, 23 So. 821; 182 Ala. 376, 62 So. 706. The bill does not make out a case of fraud sufficient to vitiate the decree. 40 Ala. 155, 88 Am. Dec. 757; 175 Ala. 299, 57 So. 754; 10 Wall. 308, 19 L.Ed. 931; 216 Ill. 354, 75 N.E. 108, 108 Am. St. Rep. 219; 108 Ala. 29, 18 So. 801; 182 Ala. 376, 62 So. 706; 182 Ala. 622, 62 So. 176, 46 L.R.A. (N.S.) 274; 203 Ala. 683, 85 So. 25; 74 Ala. 334. Persons of the same class were before the court, and hence those not of the same class are bound. 201 Ala. 248, 77 So. 838; 187 Ala. 165, 65 So. 381; 190 Ala. 461, 67 So. 417; 144 Ala. 437, 39 So. 506, 113 Am. St. Rep. 53; 145 Ill. 573, 33 N.E. 853, 24 L.R.A. 492, 36 Am. St. Rep. 514; 214 Ill. 113, 73 N.E. 409, 105 Am. St. Rep. 98, 2 Ann. Cas. 787; 113 U.S. 340, 5 Sup. Ct. 652, 28 L.Ed. 1015; 66 S.C. 155, 44 S.E. 564, 97 Am. St. Rep. 757. The bill was not sufficient as a bill for review. 203 Ala. 650, 84 So. 820; 203 Ala. 502, 83 So. 600; 201 Ala. 99, 77 So. 393; 61 Ala. 354; 97 Ala. 451, 12 So. 48.
E. W. Godbey, of Decatur, for appellees.
The bill and decree attacked failed to aver jurisdictional facts justifying the sale, and rendered all the proceedings void thereunder. 108 Ala. 651, 18 So. 520; 16 Ala. 411; 18 Ala. 232; 30 Ala. 419; 29 Ala. 372. The former decree and bill proposed a violation of the trust, and the subsequent or modified decree authorized anticipations of income expressly interdicted by the will. Lewin on Trusts (1st Am. Ed.) § 588; 8 Misc. Rep. 660, 30 N.Y. Supp. 178; 11 Pick. (Mass.) 120; 125 Mass. 138; 174 Cal. 366, 163 P. 206; 189 Ky. 370, 225 S.W. 48; 2 Grat. (Va.) 471, 44 Am. Dec. 395; 179 N.Y. 352, 72 N.E. 242. A former decree authorizing a conversion of the land into choses in action perverted the trust power. 67 Miss. 234, 7 So. 225; 189 Ky. 370, 225 S.W. 48; 2 Perry on Trusts, § 777; 104 Wis. 500, 79 N.W. 766, 81 N.W. 367, 48 L.R.A. 812; 89 Ala. 381, 8 So. 72; 65 Ala. 111; 13 C. J. 853. Until the father died, these complainants took no estate at all, but only the prospects of one. 23 Ala. 814; 39 Ala. 528; 178 Ala. 117, 59 So. 58; 139 Ala. 614, 36 So. 775; 90 Ala. 262, 7 So. 836; 130 Mass. 441; 136 N.C. 187, 48 S.E. 633, 67 L.R.A. 443; 89 Ala. 381, 8 So. 72. Until the death of the father and the ascertainment as to whether these complainants were to one of the class to whom distribution was to be made, and then only, could it be said that they had any other estate except that in expectancy. 28 Ala. 497; 25 Ala. 292; 24 Ala. 669; 139 Ala. 614, 36 So. 775; 136 N.C. 187, 48 S.E. 633, 67 L.R.A. 443; and authorities supra. The doctrine of representation therefore could not apply. 34 Ala. 430, 73 Am. Dec. 461; 74 N.C. 434; 264 Ill. 219, 106 N.E. 262; 92 Md. 591, 48 A. 145, 52 L.R.A. 406, 84 Am. St. Rep. 524. The power of sale under the will rendered the court proceedings unnecessary, confiscatory and void. 30 Cyc. 354; 33 Wn. 392, 74 P. 577, 63 L.R.A. 815, 99 Am. St. Rep. 952. A purchase by a trustee is voidable, irrespective of good faith and adequacy of consideration. 169 Ala. 648, 53 So. 830; 238 Fed. 1007, 151 C.C.A. 663; 143 Ala. 93, 39 So. 366; 149 Iowa, 690, 126 N.W. 942, 128 N.W. 932; 10 N.Y. 402, 61 Am. Dec. 752; 9 Wend. (N.Y.) 571, 24 Am. Dec. 179. The bill and the decree were filled with grave errors, rendering it vulnerable for error apparent, and subject to attack by this bill of review. 203 Ala. 544, 84 So. 739; 130 Ala. 85, 30 So. 728; 64 Ala. 364; 97 Ala. 451, 12 So. 48; 185 Ala. 179, 64 So. 312; 80 Ala. 115; 69 Ala. 71; 21 C. J. 702, 733. This is a direct attack. 86 Conn. 546, 86 A. 10, Ann. Cas. 1914B, 82; 136 Iowa, 128, 113 N.W. 492, 12 L.R.A. (N.S.) 891, 125 Am. St. Rep. 229; 28 Cyc. 1062.
This cause was submitted under Supreme Court rule 46, and the opinion of the court was prepared and delivered by —
The doctrine is well established that a trustee cannot purchase or deal in trust property for his own benefit or in his own behalf, directly or indirectly. But such a purchase is not absolutely void, but voidable only, at the election of the interested parties seasonably expressed. Hammond v. Hopkins, 143 U.S. 224, 12 Sup. Ct. 418, 36 L.Ed. 134; Cottingham v. Moore, 128 Ala. 209, 30 So. 784; Charles v. Dubose, 29 Ala. 367; Calloway v. Gilmer, 36 Ala. 354.
The chancery court had jurisdiction to order a sale, or change the character of the trust property, or to confirm a private sale of same, if deemed to the interest of the minor cestui que trust. McLean v. Presley, 56 Ala. 211; Campbell v. Walker, 5 Ves. Jr. 678; McCreary v. Billing, 176 Ala. 314, 58 So. 311, Ann. Cas. 1915A, 561. Therefore the chancery court had jurisdiction to order or confirm the sale in question notwithstanding one of the purchasers, Yarbrough, was the trustee, and having acquired jurisdiction its decree cannot be impeached by a separate bill of review, except for fraud practiced upon the court in the procurement of the decree and which is not sufficiently charged in the present bill of complaint. Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172; Noble v. Moses, 74 Ala. 616.
If the chancery court erred in the former decree as to the method of sale or in permitting the use or disposition of a portion of the income before its maturity, this should have been corrected by appeal and is not available to these complainants by a new and independent bill to vacate and annul said former decree. We do not mean to hold, however, that said former decree was erroneous or that it was of detriment to these complainants if such was the case. True, the will required a reinvestment of the fund, but this did not preclude the chancery court from permitting a credit sale of the property and a reinvestment of the proceeds after the purchase price was paid. Nor does it appear that such a sale prolonged the life estate beyond the terms of the will as the remaindermen would have acquired the same upon the death of the life tenant. Nor does it appear that these complainants have been injured because some of the income was used or disposed of before it matured for the reason that, from aught that appears. Yancy Hamilton lived long enough to become entitled to these items. In other words, the complainants cannot complain of the use made of any of the income from the estate occurring during the life of Yancy Hamilton if he lived long enough to absorb those payments prematurely made.
It may be true that these complainants, or some of them, were not in esse when the former bill was filed and the decree was rendered, but members of the same class to which they belong were and were made parties to the proceedings, and the decree rendered against them would be binding upon after-born members of the same class with identical rights. Letcher v. Allen, 180 Ala. 254, 60 So. 828; Elmore v. Galligher, 205 Ala. 230, 87 So. 349.
The foregoing does not seem to be in conflict with the views of the learned trial court, as expressed in a prepared opinion; but said trial court seems to have overruled the demurrers to the bill upon the theory that some of the land was not embraced or properly described in the former decree and sale. If this was the case, said land has not been disposed of, and, as Yancy Hamilton is dead, the trust has terminated and the complainants have a plain and adequate remedy at law for the recovery of such land as was not legally disposed of as well as the rental value of same since the death of the life beneficiary.
The trial court erred in overruling the demurrers to the bill, and the decree is reversed, and one is here rendered sustaining the demurrer, and the cause is remanded.
Reversed, rendered, and remanded.
SOMERVILLE, THOMAS, and MILLER, JJ., concur.