shapes, through the decrees of the court, the conduct of the trustee. Hence, unless there be something special in the terms of the trust, which confers upon the trustee the power and duty to represent in courts of equity the beneficial interests; unless a power of attorney, so to speak, is conferred upon him to represent those interests, in those forums, a decree in equity affecting the trust estate, rendered against the trustee, in the absence of the cestui que trust, is not binding upon the latter. The cestui que trust is an indispensable party to such proceedings, and he cannot 454 be concluded unless he is made a party: Collins v. Lofftus, 10 Leigh, 5; 34 Am. Dec. 719, and extended note at page 722, citing many authorities.

We, of course, do not refer to that class of cases where the interested parties are so numerous that it is impracticable to bring them all in, and in which a class of persons may be brought in to represent others of similar interests: See interesting discussion of this subject in Campbell v. Railroad Co., 1 Wood, 368. The record in the suit of the Fort Payne Bank did not bring the case within this exception. The bill professed to make all the bondholders parties, and made no allegation, either directly or of facts going to show it, that it was impracticable to bring them in. The case was unlike Campbell v. Railroad Co., 1 Wood, 368, where there were fifteen hundred railroad mortgage bonds, outstanding, and such facts shown that it was impossible to make all the holders of the bonds parties, inducing Judge Bradley to hold that the trustee in the bond mortgage was, in the litigation and decree sought afterward to be set aside, the representative of the bondholders, and that his presence before the court bound them. We must hold, therefore, that the complainant, if the facts alleged be true, is not bound by the former decree, and is entitled to foreclose the deed of trust for the satisfaction of the bonds, unaffected, so far as his rights are concerned, by the former decree and sale thereunder. The bill is clearly sufficient, as an original bill, for this purpose. It is in no sense multifarious or repugnant, because it submits to the court whether relief may be had under it as a bill of review, or a bill to impeach the decree for fraud on the part of the trustee in suffering the decree, of which the bill also complains as a ground of relief. Whether, if it had appeared, as the speaking demurrer filed by the respondents undertakes to suggest, that the trustee was authorized to represent the cestui que trust in courts of equity, the bill may be considered sufficient as a bill of review, or a bill to impeach the former decree for fraud or unfaithful

ness on the part of the trustee, in the matter of the defense of the former suit, which should, equitably, be visited upon the Fort Payne Bank, we need not now determine. We, of course, cannot look to the demurrer referred to, to ascertain the terms of the trust. Whether the terms of the trust conferred upon the trustee the 455 power and duty to represent, in equity, such interests as the complainant now seeks to enforce, and, if yea, whether that trust was personal to the First National Bank-the trustee named in the deed-or such as might be exercised by a successor appointed by court, are questions which can only be determined safely by an inspection of the deed.

The chancellor erred in sustaining the demurrers to the bill and dismissing it for want of equity, and his decree in that behalf will be reversed, and a decree here rendered overruling the demurrers, and motion to dismiss for want of equity, and remanding the cause for further proceedings. Respondents may answer the bill within thirty days, with power in the chancellor to extend the time on sufficient showing.

Reversed, rendered, and remanded.

BONDS.-A BONA FIDE PURCHASER of a negotiable bond acquires a good title thereto if he pays value for it without notice: East Birmingham Land Co. v. Dennis, 85 Ala. 565; 7 Am. St. Rep. 73. CORPORATIONS SALE OF PROPERTY.-CREDITORS of a corporation may enforce their claims against any of its property which has not passed into the hands of a bona fide purchaser: Note to Miners' Ditch Co. v. Zellerbach, 99 Am. Dec. 337. Compare Montgomery Web Co. v. Dienelt, 133 Pa. St. 585; 19 Am. St. Rep. 663, as to fraudulent conveyance by corporation.

TRUSTEES AND BENEFICIARIES-ACTION-PARTIESJUDGMENT.-A trustee and his cestui que trust are so far inde pendent of each other that an action against one has no effect upon the other, and both are essential parties to a complete determination of any action in reference to the trust estate. A judgment against a cestui que trust, the trustee not being a party, does not bind him: Roberts v. Yancey, 94 Ky. 243; 42 Am. St. Rep. 357.

PLEADING-MULTIFARIOUSNESS.-As to when a bill is not multifarious, see note to Hall v. Henderson, 62 Am. St. Rep. 148, showing that no general principle in regard to it can be extracted from the cases.

FRIX V. MIller.

[115 ALABAMA, 476.]

IN

VENDOR AND PURCHASER - MISTAKE - TITLE UNITED STATES-DUTY OF VENDEE.-If one sells land, to which he is supposed to have a good title, but the purchaser subsequently ascertains that the title is in the United States. and thet the land is open to entry, he is under no duty or obligation, legal or equitable, to the vendor to enter the land for him and perfect the title for the latter's benefit.

VENDOR AND PURCHASER-COLLUSIVE EVICTION— ACTION FOR BREACH OF WARRANTY.-A collusive eviction is of no force or effect in an action for a breach of warranty. If the collusion appears, the action cannot be sustained.

VENDOR AND PURCHASER-EVICTION UNDER TITLE PARAMOUNT-BAR TO ACTION FOR BREACH OF WARRANTY.-The loss of land by eviction under a paramount title is purely a matter of legal cognizance, and an eviction, pretended and not real, is pleadable in bar to an action for a breach of warranty. VENDOR AND PURCHASER-EVICTION UNDER TITLE PARAMOUNT-BAR TO ACTION FOR BREACH OF WARRANTY-ILLUSTRATION.-If land, after its purchase, is discov ered to be public, and the buyer's son, without fraud or collusion with his father, enters it as a homestead solely for his own use, the fact that neither one informs the vendor of the public character of the land does not affect the purchaser's right of action for a breach of warranty, if he is evicted by his son, or surrenders possession to him under the latter's paramount title so acquired, out a fraudulent or collusive eviction would be a defense.

INJUNCTION-ACTION FOR BREACH OF WARRANTYWANT OF EQUITY.—If land sold is subsequently discovered by the purchaser to be public land, and the purchaser's son enters it as a homestead solely for his own use, and evicts his father, a bill to enjoin the purchaser's action for a breach of warranty is without equity, where it proceeds upon the theory that the purchaser should have notified the complainant of such discovery; that the purchaser should have entered the land and perfected the title for the vendor's benefit; that by fraud and collusion between the father and son the latter really entered the land for the use of his father; and that the alleged eviction was collusive and fraudulent.

Amos E. Goodhue and Dortch & Martin, for the appellants.

Pugh & Hood and Denson, Burnett, and Culli, for the appellee.

478 HEAD, J. Judson J. Frix is the complainant, and Charles Miller and Martin Miller the respondents in this bill. The substance of the complainant's complaint is, that on January 15, 1892, he sold and conveyed to said Charles Miller, with covenant of warranty, one hundred and forty-nine acres of land which he, and those under whom he claimed, had been in possession of for more than twenty years. That the chain of his title ran regularly back, through successive conveyances, to 1821, and he and his predecessors claimed and held the property as their own, and supposed they had good titles thereto. In fact, the title to a particularly described eighty acres of the land had never passed out of the United States, and said eighty acres was still subject to entry. The said Charles Miller, on his purchase, went into possession, and remained in the undisturbed possession of the land, until a period so unintelligibly stated in the bill as not to be capable of being understood. Said Martin was a son of Charles Miller, who, the bill avers, was, since 1892, a member

of his father's family, residing with his father upon said land. He, Martin Miller, knew all the time that his father had purchased the land from complainant, himself having supplied a portion of the purchase money. Sometime in the year 1894, Charles Miller and Miller (we suppose, by the latter, is meant Martin Miller) ascertained that said eighty acres was public land open to entry. It is averred that said eighty acres lie adjacent to lands of orator, and that orator was entitled, under the laws of the United States, to acquire the title to said 479 lands by the payment of one dollar and twenty-five cents per acre, and that Charles Miller had the right and could have acquired the title to said land as a homestead under the laws of the United States; that said "Charles Miller and

Miller fraudulently kept from orator the knowledge which they had acquired that said land was public land and subject to entry; that said Charles Miller did not surrender the possession which he had acquired from orator, and made no effort to put orator back in possession of said land, but procured or permitted his son, Martin Miller, to take advantage of the possession which he had as a member of his father's family, to enter such land as a homestead under the laws of the United States; that said Martin Miller, on the day of -, by and with the knowledge and consent of his father, entered said land and received a receiver's receipt for the entry fees." Until this occurred orator had no actual notice that the land was public land, but he believed he had conveyed to Charles Miller a perfect title.

On August 29, 1895, said Charles Miller commenced an action. at law against the complainant for the breach of the covenant of warranty, alleging eviction by said Martin Miller under his paramount title acquired from the United States, as aforesaid, which suit is still pending. The bill avers that orator "has frequently offered, and now offers, to perfect the title to said land by the payment of all costs and expenses that may be necessary to procure the title from the United States, either in orator as owner of an adjoining farm, or in said Miller as a homestead, or otherwise to procure the title from the United States. The said Charles Miller has constantly refused to accept such propositions, and persists in pressing his said suit."

The complainant submits himself to the jurisdiction of the court, and offers to do all things necessary, under the direction of the court, to procure and perfect the title to said land in said. Charles Miller, and to pay all costs and expenses necessary thereto, and to do whatever, in the premises, may be required by equity and good conscience.

The special prayer is for a temporary injunction of the action at law; that "said Martin Miller hold the title (he may acquire when completed and patent issued therefor) for said entry of said land, as a 480 trustee for said Charles Miller, in so far as to limit said Charles Miller's recovery upon his claim for breach of covenant of warranty to the costs and expenses of acquiring the title from the United States"; that the amount of such costs and expenses be ascertained, and, upon payment of the same by orator, that the action at law be perpetually enjoined. There is a prayer for general relief.

The chancellor sustained a motion to dissolve the injunction, and also to dismiss the bill for want of equity. The appeal is from that action. There were demurrers to the bill, but they were not passed upon.

The gist of the complaint (though in some respects vaguely and imperfectly expressed) appears to be that it was the duty of Charles Miller to the complainant, when he learned that the eighty acres were public land, to have entered it as a homestead, and thus have perfected the title which complainant had undertaken to grant him; or to have communicated to the complainant the information that he had received that the land was public land, affording complainant an opportunity, as adjacent owner, to purchase the eighty acres from the government, at one dollar and twenty-five cents per acre, and thereby perfecting Miller's title; that Miller failed to perform this duty, but, with his son, fraudulently withheld said information, and aided and abetted his son, for some use or benefit to himself to secretly enter the land. Wherefore, in equity, the said Charles Miller should be treated as having perfected his title in one or the other of these methods, and his damage for breach of the covenant of warranty limited to the sum necessary to his reimbursement, which sum he offers to pay, and obtain perpetual injunction of the action for the breach. We say this seems to be the general scope and object of the bill, though its allegations and prayer are somewhat vague and imperfect, rendering the bill demurrable. If the bill, thus considered, contains equity, the motion to dismiss for the want of equity should not have been sustained, notwithstanding the demurrable defects. The latter might be cured by amendment.

We remark, in the first place, that it is too obvious for discussion that Charles Miller was under no sort of duty or obligation, legal or equitable, to Frix, to assume and carry out the duties, obligations, and burdens of 481 entering the land in