Huntington v. Spear , 131 Ala. 414 ( 1901 )

DOWDELL, J.

This is a common law action of ejectment. There are two demises laid in the complaint. Upon the trial the plaintiff was compelled to take a non-suit on account of the adverse ruling of the court in the exclusion of evidence. • Tlie evidence excluded was a deed executed by Edward Gage as trustee on the 11th day of Juné, 1853, and is set out in the bill of exceptions. The only pretense of title in Gage, was claimed under the deed of F. S. Lyon as commissioner and trustee executed on the 22d day of April, 1852, which was offered in evidence by the plaintiff to show his title. This latter deed is also set out in the bill of exceptions. 'There were several grounds of objection made by the defendant |to' the admission in evidence of the deed of Edward Gage trustee, but we need to consider only one of the grounds, which we think conclusive upon the question of the correctness of the trial court’s ruling. The deed from Lyon to Gage was to the latter as trustee for the use and benefit of Mrs. Marian Gage. This deed conferred no power on the trustee, nor did it impose any duty upon him as such.' By it, he was merely made the repository of the legal title. The trust creaked was nothing more than a dry naked trust, and by force of [the statute, section 1.306, Code of 1852, which is the same as section 1027 of the present Code (1896), the legal title vested in the beneficiary, Mrs. Marian 'Gage. — You v. Flinn, 34 Ala. 414; Tindall v. Brake, 51 Ala. 574; Wilkinson v. May, 69 Ala. 33; Jordan v. Phillips & Crew, 126 Ala. 561.

In the case of Robinson et al. v. Pierce et al., 118 Ala. 273, which is relied upon by the appellant as an authority, there is nothing opposed to the view we have expressed and which is supported by the authorities cited above. In the deed in the case of Robinson et al. v. Pierce, et al. there was a power coupled with the trust to the execution of which active duties were imposed upon the trustee. Such is not the case here, and that fact wholly differentiates that case from the one at bar. No title being shown in Edward Gage, the court committed no error in the exclusion of the deed, and the judgment will be affirmed.

Affirmed.