Tolley v. Hamilton, 8 Div. 352.

CourtSupreme Court of Alabama
Writing for the CourtANDERSON, C.J.
Citation91 So. 610,206 Ala. 634
Docket Number8 Div. 352.
Decision Date20 October 1921

Rehearing Denied Nov. 17, 1921.

Appeal from Circuit Court, Limestone County; O. Kyle, Judge.

Bill by Price Alexander Hamilton and others against James H. Tolley and others to review and reverse a decree for fraud and for a sale of lands for division. From a decree overruling demurrers to the bill, respondents appeal. Reversed rendered, and remanded.

W. R Walker, of Athens, for appellants.

E. W Godbey, of Decatur, for appellees.

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 S.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...

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14 cases
  • Henderson v. Henderson, 4 Div. 21.
    • United States
    • Supreme Court of Alabama
    • 24 Mayo 1923
    ...or proceeds of the trust property to or for another with remainder over ( Gunter v. Townsend, 202 Ala. 160, 79 So. 644; Tolley v. Hamilton, 206 Ala. 634, 91 So. 610; McCurdy v. Kenon, 178 Ala. 345, 349, 59 So. Edwards v. Edwards, 142 Ala. 267, 39 So. 82; Witter v. Dudley, 36 Ala. 135; Gandy......
  • Meeks v. Miller
    • United States
    • Supreme Court of Alabama
    • 13 Mayo 1926
    ...... benefit of the cestui que trust.' " ***. . . This. was adhered to in later decisions. Tolly v. Hamilton, 206 Ala. 634, 91 So. 610; Id., 209 Ala. 533,. 96 So. 584. . . The. many authorities in this and other jurisdictions are. collected in ......
  • Warren v. Southall, 8 Div. 328.
    • United States
    • Supreme Court of Alabama
    • 24 Marzo 1932
    ...... established, and the infant is within the jurisdiction of the. court and in the cause for hearing." Hamilton v. Tolley, 209 Ala. 533 [3], 96 So. 584, and authorities. there collected; Fowler v. Fowler, 219 Ala. 453,. 456, 122 So. 440. The attack now made ......
  • Ussery v. Darrow, 8 Div. 964.
    • United States
    • Supreme Court of Alabama
    • 20 Abril 1939
    ......The opinion in Elmore v. Galligher,. supra, is a later expression of the Court and is well. supported, as we have stated, and cited in Tolley v. Hamilton, 206 Ala. 634, 91 So. 610. Whereas the opinion. in Culley v. Elford, supra, apparently loses sight of the two. aspects of its ......
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