B. F. SAFFOLD, J.
In this case the appellee sought to require the appellant, Dudley, to surrender to her a certain tract of land in Lowndes county, and to account for the rents and profits thereof, from the time he received possession. Dudley obtained possession of the land in 1851, under a deed from Hamlin F. Lewis and wife and Robert Scott and wife, conveying it-as their own property to him in fee simple, and warranting the title, for valuable consideration. The appellee claims that this land was a part of the estate of her father, Francis Lewis, and was set apart to her under a partition of her father’s estate, effected by the chancery court at her instance, in 1843, and secured by decree to her sole and separate use for her life, with remainder to her children; that, by the said decree Hamlin F. Lewis was made her trustee, she being married, and having possession of the property as such only, he made an unauthorized sale to Dudley. Dudley replies to this that at the time of his purchase Lewis was in possession of the land, claiming it as his own, and he knew nothing of the claim of the appellee until long after he had paid for it. He further insists that in 1846 the appellee and her trustee, Lewis, on their own application, obtained authority from the chancery court to sell the land, and although he did not know of this at the time of his purchase, Lewis did have authority to make the sale to him, and to convey titles, and under the circumstances, especially of the appellee’s neglect to assert her right when he might have secured himself, he ought to be protected. The appellee responds to this that the sale was not made under the decree of 1846, and before and at the time of the sale, and for some time afterwards, she was residing with her husband in Mississippi, and therefore involuntarily absent from the State; but on the death of her husband, Lampkin, she returned and commenced proceedings at once for the recovery of the land, before any statute of limitations had barred her right todo so.
The proof establishes, that the land in question belonged to Francis Lewis at the time of his death ; that under the decree of 1843 it was allotted to tb e appellee as a part of [693]*693her distributive share; that she and her husband, Lamp-kin, occupied it from that time until 1846, when they removed from the State; and that Hamlin E. Lewis, who was her trustee under the decree of partition, then went into possession, and so continued until, under his sale to Dudley, in 1851, it was transferred to the latter. It is also sufficiently proven that Dudley had no actual notice of the claim of the appellee, and supposed he was obtaining a fee simple title, for which he paid a valuable consideration.
The following questions are presented : 1. Did the,decree of 1843 divest the title of the other heirs of Francis Lewis out of this particular portion of his estate, and vest it in -the appellee, her children and her trustee ? 2. Was it necessary to the validity of this decree that it should have been recorded in accordance with the proviso to the statute (Clay’s Dig. p. 354, § 57,) respecting decrees, which vested the right and title to property without a deed of conveyance? 3. Was Dudley a purchaser for valuable consideration without notice ? . 4. Should the sale to him in 1851 be referred to the authority given to the'trustee, Lewis, by the decree of 1846 ; and if not, what is his position concerning the matter?
It has been twice decided by this court, that the title to ■the property in controversy became, by the decree of 1843, vested in Lewis in trust for the appellee, to her sole and separate use for life, with remainder to her children. Witter v. Dudley, 36 Ala. 135 ; Same v. Same, 42 Ala. 616. There can be no doubt of the correctness of these decisions. The right to an equitable settlement out of her own property, against her husband, his assignee, &e., before reduced to possession, is inherent in the wife, of which the court of chancery has undoubted jurisdiction.- — Spence Eq. Jur., vol 2, 482, 492 ; 2 Story’s Eq. Jur. § 1404-1420. Such a settlement having been made, the appellant, whose interest in the matter accrued long afterwards, can not be heard to impeach its validity in this collateral proceeding.
Whether the decree of 1843 was one on which rested the right and title of property or not, its validity does not at all depend on its being recorded. The recording was [694]*694designed to give notice as in case of deeds and other conveyances.
A decree is not implied notice to strangers after the case is ended. — Sugd. on Vend. § 1047. The decree of 1843 was not recorded in the county court office. Dudley had no actual notice of the appellee’s claim to the property. It is insisted, however, that the requisition upon the trustee to account annually in the matter of the separate estate specifically described in the decree, was a lis pendens at the time of Dudley’s purchase. Ids pendens in a chancery suit begins with the filing of the bill and service of subpoena, and continues until the final orders are taken in the case. — Centre v. P. and M. Bank, 22 Ala. 743. The settlements made from time to time by a trustee of his trust can not be said to be the pendency of a suit, especially in a case like this, where none had ever been made. — Sugd. on Vend. 1046.
As there was nothing of record sufficient to charge Dudley with notice of the appellee’s rights, was there any thing existing in parol which should have that effect? In Sterry v. Arden, 1 Johns. Ch. R. 261, a purchaser for valuable consideration was charged with constructive notice of a voluntary settlement, because before the execution of his deed he had heard that the grantor had made some provision for his daughters out of property in Greenwich street, and there was no evidence that the grantor owned any other property in that street, except the lots included in the settlement. In Johnson v. Thweatt, 18 Ala. 741, a purchaser was charged with notice that a deed of trust under which his vendor derived title was fraudulent. A purchaser must be bound to inquire whether, beyond his own declarations, his vendor has any title to the property he is selling. Otherwise it would be in the power of any agent, tenant or mere trespasser to deprive the owner of his property by a sale. To entitle himself to protection the purchaser must have purchased the legal title, and not be , a mere purchaser without a semblance of title. — 2 Story’s Eq. Jur. § 1502.
It is proven that Dudley knew this land belonged to [695]*695Eraneis Lewis at his death, and that there were several heirs of his estate. He might have supposed that it belonged to Hamlin E. Lewis, as he was in possession of it and was one of the heirs, and it was about the proportion which one would have been entitled to. But he certainly knew that if this was the case, there must be some agreement between the heirs, or some decree of the probate or chancery court to that effect. It was not in evidence that Lewis’ claim to this land as his own was open and notori-' ous. The character of his possession must therefore be referred to the capacity in which alone he had a right to claim it. If in that capacity he had authority to sell it, apparent on his title, Dudley may claim the benefit of it; but he must be charged with notice that Lewis held as the trustee of the appellee.
It is unnecessary to determine whether the decree of 1816 for a sale conferred a power on the trustee, as such, or only as an officer of the court.
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B. F. SAFFOLD, J.
In this case the appellee sought to require the appellant, Dudley, to surrender to her a certain tract of land in Lowndes county, and to account for the rents and profits thereof, from the time he received possession. Dudley obtained possession of the land in 1851, under a deed from Hamlin F. Lewis and wife and Robert Scott and wife, conveying it-as their own property to him in fee simple, and warranting the title, for valuable consideration. The appellee claims that this land was a part of the estate of her father, Francis Lewis, and was set apart to her under a partition of her father’s estate, effected by the chancery court at her instance, in 1843, and secured by decree to her sole and separate use for her life, with remainder to her children; that, by the said decree Hamlin F. Lewis was made her trustee, she being married, and having possession of the property as such only, he made an unauthorized sale to Dudley. Dudley replies to this that at the time of his purchase Lewis was in possession of the land, claiming it as his own, and he knew nothing of the claim of the appellee until long after he had paid for it. He further insists that in 1846 the appellee and her trustee, Lewis, on their own application, obtained authority from the chancery court to sell the land, and although he did not know of this at the time of his purchase, Lewis did have authority to make the sale to him, and to convey titles, and under the circumstances, especially of the appellee’s neglect to assert her right when he might have secured himself, he ought to be protected. The appellee responds to this that the sale was not made under the decree of 1846, and before and at the time of the sale, and for some time afterwards, she was residing with her husband in Mississippi, and therefore involuntarily absent from the State; but on the death of her husband, Lampkin, she returned and commenced proceedings at once for the recovery of the land, before any statute of limitations had barred her right todo so.
The proof establishes, that the land in question belonged to Francis Lewis at the time of his death ; that under the decree of 1843 it was allotted to tb e appellee as a part of [693]*693her distributive share; that she and her husband, Lamp-kin, occupied it from that time until 1846, when they removed from the State; and that Hamlin E. Lewis, who was her trustee under the decree of partition, then went into possession, and so continued until, under his sale to Dudley, in 1851, it was transferred to the latter. It is also sufficiently proven that Dudley had no actual notice of the claim of the appellee, and supposed he was obtaining a fee simple title, for which he paid a valuable consideration.
The following questions are presented : 1. Did the,decree of 1843 divest the title of the other heirs of Francis Lewis out of this particular portion of his estate, and vest it in -the appellee, her children and her trustee ? 2. Was it necessary to the validity of this decree that it should have been recorded in accordance with the proviso to the statute (Clay’s Dig. p. 354, § 57,) respecting decrees, which vested the right and title to property without a deed of conveyance? 3. Was Dudley a purchaser for valuable consideration without notice ? . 4. Should the sale to him in 1851 be referred to the authority given to the'trustee, Lewis, by the decree of 1846 ; and if not, what is his position concerning the matter?
It has been twice decided by this court, that the title to ■the property in controversy became, by the decree of 1843, vested in Lewis in trust for the appellee, to her sole and separate use for life, with remainder to her children. Witter v. Dudley, 36 Ala. 135 ; Same v. Same, 42 Ala. 616. There can be no doubt of the correctness of these decisions. The right to an equitable settlement out of her own property, against her husband, his assignee, &e., before reduced to possession, is inherent in the wife, of which the court of chancery has undoubted jurisdiction.- — Spence Eq. Jur., vol 2, 482, 492 ; 2 Story’s Eq. Jur. § 1404-1420. Such a settlement having been made, the appellant, whose interest in the matter accrued long afterwards, can not be heard to impeach its validity in this collateral proceeding.
Whether the decree of 1843 was one on which rested the right and title of property or not, its validity does not at all depend on its being recorded. The recording was [694]*694designed to give notice as in case of deeds and other conveyances.
A decree is not implied notice to strangers after the case is ended. — Sugd. on Vend. § 1047. The decree of 1843 was not recorded in the county court office. Dudley had no actual notice of the appellee’s claim to the property. It is insisted, however, that the requisition upon the trustee to account annually in the matter of the separate estate specifically described in the decree, was a lis pendens at the time of Dudley’s purchase. Ids pendens in a chancery suit begins with the filing of the bill and service of subpoena, and continues until the final orders are taken in the case. — Centre v. P. and M. Bank, 22 Ala. 743. The settlements made from time to time by a trustee of his trust can not be said to be the pendency of a suit, especially in a case like this, where none had ever been made. — Sugd. on Vend. 1046.
As there was nothing of record sufficient to charge Dudley with notice of the appellee’s rights, was there any thing existing in parol which should have that effect? In Sterry v. Arden, 1 Johns. Ch. R. 261, a purchaser for valuable consideration was charged with constructive notice of a voluntary settlement, because before the execution of his deed he had heard that the grantor had made some provision for his daughters out of property in Greenwich street, and there was no evidence that the grantor owned any other property in that street, except the lots included in the settlement. In Johnson v. Thweatt, 18 Ala. 741, a purchaser was charged with notice that a deed of trust under which his vendor derived title was fraudulent. A purchaser must be bound to inquire whether, beyond his own declarations, his vendor has any title to the property he is selling. Otherwise it would be in the power of any agent, tenant or mere trespasser to deprive the owner of his property by a sale. To entitle himself to protection the purchaser must have purchased the legal title, and not be , a mere purchaser without a semblance of title. — 2 Story’s Eq. Jur. § 1502.
It is proven that Dudley knew this land belonged to [695]*695Eraneis Lewis at his death, and that there were several heirs of his estate. He might have supposed that it belonged to Hamlin E. Lewis, as he was in possession of it and was one of the heirs, and it was about the proportion which one would have been entitled to. But he certainly knew that if this was the case, there must be some agreement between the heirs, or some decree of the probate or chancery court to that effect. It was not in evidence that Lewis’ claim to this land as his own was open and notori-' ous. The character of his possession must therefore be referred to the capacity in which alone he had a right to claim it. If in that capacity he had authority to sell it, apparent on his title, Dudley may claim the benefit of it; but he must be charged with notice that Lewis held as the trustee of the appellee.
It is unnecessary to determine whether the decree of 1816 for a sale conferred a power on the trustee, as such, or only as an officer of the court. It is sufficient that the intention was manifest, from the application, .the terms prescribed, and the duties imposed on both the trustee and the register, that the power of sale was to be exercised within a reasonable time, and was not a continuing power, attached to the trust, and capable of exercise at any time during the existence of the trust estate.
' The sale to Dudley was certainly not made in execution of the power and in pursuance of the decree. His deed and his own testimony forbid the assumption. Nor can ic be referred to that authority after the lapse of five years therefrom, especially without positive proof that it was so ' intended by both the trustee and the cestui que trust. — Price v. Meth. An. Conf. 12 Ala. 39-50.
There is no evidence that the appellee ever concurred in or sanctioned the sale, or received any part of the proceeds.
It results, from what has been said, that Dudley bought no title whatever from Lewis,1 either legal or equitable, because the latter, at the time, had no authority to sell.
Shall Dudley be held to have been a trustee for the appellee, and liable to account to her for the rents and profits [696]*696of the property from the time he obtained possession of it ? Is it an imperative rule that he must be regarded either as a bona fide purchaser without notice, or as a trustee in invitum. The pervading excellence of equity jurisprudence is, that it varies its adjustments and proportions so as to meet the very form and pressure of each particular case. 1 Story’s Eq. Jur. § 439.
The test applied by vice-chancellor Wigram in the case of Jones v. Smith, 1 Hare, 43, to distinguish the cases in which a purchaser should or not be charged with notice, seems to present a safe rule for determining when a purchaser charged with constructive notice only of a trust, should be treated as a trustee in invitum. When the party has incautiously neglected to make inquiries, or has not designedly abstained from such inquiries' for the purpose of avoiding knowledge — a purpose which, if proved, would clearly show that he had a suspicion of the truth, and a fraudulent determination not to learn it. If, in short, there is not actual notice that the property is in some way affected, and no fraudulent turning away from a knowledge of the facts which the res gestee would suggest to a prudent mind; if mere want of caution, as distinguished from fraudulent and willful blindness, is all that can be imputed to the purchaser, then he should not be charged as a'trustee in invitum. If we add to this the neglect of the appellee for several years to' look after her interest, we think in good conscience the rule of law should be applied to this really equitable action of ejectment. — Rev. Code, § 2617 ; Ormond v. Martin, 36 Ala. 598.
The terms imposed for the continuance granted to the defendant are unusual. This is a matter of discretion, and not reviewable within the purview of the law conferring the power. But a distinction should be drawn between the imposition of terms, and the requisition of conditions amounting to an improper and unjust abuse of the discretion. This latter the superior court ought to remedy on appeal. — M. & W. P. R. R. Co. v. Persse, Taylor & Co., 25 Ala. 536; S. & N. Ala. R. R. Co. v. Falkner, 44 Ala. 654.
[Note by Berorter. — At a subsequent day of the term, appellee applied for a modification of the opinion, so as to charge appellant with the rents from the time he had actual notice, &c. The following response was made by — ]
Note. — This case was decided at the January term, 1870, and then held under advisement on application for modification of opinion by appellee, and for re-hearing by the appellant, until June term, 1870. The record did not come into Reporter’s hands in time to appear in either of the preceding volumes.
In this case, however, the terms were accepted, without objection, by the defendant, and may have been proposed by him. .
The other assignments of error need not be considered. The case must be sent back, that the account may be taken, in conformity with this opinion.
The decree is reversed, and the cause remanded.
B. E. SAEEOLD, J.
— The appellee asks that the opinion in this case be modified so as to charge the appellant with the. rents and profits of the lands from the time he had ■ actual notice of her rights.
To do this, would be to depart from the principle on which the appellant was held not to be a trustee in invitum. The purchase of property, or payment for it, after notice of another’s right, is culpable, and renders the purchaser liable as a trustee for the real owner. But notice after payment should not have such effect. The act from which the ill consequences to him are to flow, is past.
The application is denied.