The opinion of the Court was delivered by
Mr. Justice; Hydrick.
The statement of facts upon which the case was heard, which will be reported, shows that plaintiff has not the legal title to the lot which'he contracted to convey. The deed from Robert Fleming to John F. Meyers (1868) was upon trust,
inter alia,
“that said trustee, or his heirs or successors in the trust, shall convey the premises to such persons and for such estates as Anna Dora Fleming, by her last will and testament, shall direct.” It is clear, therefore, that the trust was not executed, and that the legal title has never passed out of the trustee, John F. Meyers, and his heirs. In
Huckabee v. Newton,
23 S. C. 291, it was held that' “In actions affecting the fee in real estate, where the legal title is in a trustee, he is a necessary party to the action, or, if he be dead, his heirs.”
1
In that case, there was a deed to a trustee, his heirs and assigns, to permit D. to enjoy the land for her life, without rent, and at her death to convey the same to her children then living, and to the children of such as were dead. Held, “that the remainder was contingent, and the trust was not executed on the death of L., and in an action for partition, the trustee being dead, his heir was a necessary party.” Here, as there, the trustee had a duty to perform, to wit, to convey to such persons as Mrs. Fleming by her will should direct. Therefore the trust was not executed. The decision in
Huckabee v. Newton
was reaffirmed in
Ayer v. Ritter,
29 S. C. 135,
7
S. E. 53, where it was held that the
cestui que trust
to whom it was the duty of the trustees to convey, under an executory trust, could not maintain an action to recover possession of the land, in the absence of a deed from the trustees, as he had no legal title. See, also,
Steele v. Smith,
84 S. C. 464, 66 S. E. 200, 29 L. R. A. (N. S.) 939. As neither John F. Meyers, who has long been dead, nor his heirs, nor any legally substtuted trustee, under the deed bf Robert Fleming to John F. Meyers, was before the Court in any of the proceedings mentioned, the decree of the Court was ineffectual to affect or pass the
legal title, which is still, under the authorities above cited, and numerous others that might be cited, in the heir of John F. Meyers.
2, 3
It follows that the alleged deed of Mrs. Fleming to her son, Robert T. Fleming, in 1906, did not convey the legal title, since it was not in Mrs. Fleming. It has been suggested, however, that, as Robert Fleming, the elder; acknowledged that a part of the purchase money for the lot was paid with money belonging to his wife, Mrs. Anna Dora Fleming, a trust resulted in her favor. True, but only
pro tanto,
and even to that extent it gave her only an equitable title. The legal title was still in Robert Fleming, and was conveyed by him to John F. Meyers, and is still in the heir of John F. Meyers. But the deed of Robert Fleming to John F. Meyers declares the trust, so that there is no need to resort to the equitablé doctrine of resulting trust. That deed was spread upon the record, and after such great lapse of time, it must be presumed that Mrs. Fleming knew of and acquiesced in it. At any rate, no matter what may have been her equitable right in the premises, she never had the legal title.
In
Manning v. Screven,
56 S. C. 78, 34 S. E. 22, the Court said :
“A
resulting trust arises in favor of one who pays the purchase money of an estate and takes title in the name of another, because of the presumption that he who pays for a thing intends a beneficial interest therein for himself, but this presumption cannot arise when a contrary intént appears, since it is based on the absence of evidence of such contrary intent. Perry on Trusts, sec.. 124; Adams Equity (7th Ed.), pp. 33, 34. In this case the trust deed expressly defines the estate intended for Frances Knox, and it further appears that the consideration paid by her secured, also, an independent covenant by the life tenant to provide for her a comfortable home and support on said land during her life or until the death of the life tenant.”
So here the trust deed expressly defines the estate intended for Anna Dora Fleming, and no other intention or estate can be presumed. It follows that her rights in the property were equitable only, and that her disposition of it, to be valid, must have been made in accordance with the terms of the deed, under which her power of disposition was to be “by her last will and testament.”
4
It is well settled that “Where the instrument creating a power specifies the nature of the instrument by which it may be executed, as where it is to be executed by will, or by deed, the power can be exercised only in the manner specified.” 21 R. C. L. 793.
The language above quoted is rested in part upon the decision of this Court in
Bentham v. Smith,
Cheves Eq. 33, 34 Am. Dec. 599, which fully supports the text, and it is unquestionably the law in this State. See
Manning v. Screven,
56 S. C. 78, 34 S. E. 22. See, also, the opinion of Chief Justice McIver, in
Humphrey v. Campbell,
59 S. C. 47, 37 S. E. 26, and
Aaron v. Beck, 9
Rich. Eq. 411, and
Wilson v. Gaines, 9
Rich. Eq. 420. It follows that, as Mrs. Fleming had no power to dispose of the land by deed, her deed of 1906 was ineffectual to convey the legal title.
5, 6
It may be said, however, that her right to dispose of the property by deed is
res judicata,
as the Court sustained the deed in the. proceeding had in 1917. There are two reasons why that contention cannot be sustained. First, in neither of those proceedings was the holder of the legal title before the Court, and it follows that the judgment was ineffectual to affect or pass the legal title. Second, in the proceeding had in 1909, the Court decreed against Robert Fleming as to any other interest than that given him under his mother’s will. A judgment of the Court, having jurisdiction of the parties in interest, is binding upon them, until set aside in some manner prescribed by law. The Code provides that a judgment is a final determination of the rights of the parties, and the only mode of
reversing or modifying it is by appeal. Hence it is settled by numerous decisions of this Court that one Circuit Judge has no jurisdiction to review and reverse or modify in any material respect the judgment of another. That does not mean that a judgment may not be attacked and set aside for fraud, accident, or mistake, which means, of course, a mistake of fact and not one of law, or that a new trial may not be granted for after-discovered evidence. But there is nothing in the record to show that the judgment of 1909 was altered in 1917 for any of the reasons above stated. The nearest approach to a valid ground of interference with it is the mere inference that the deed of 1906 was discovered after the proceeding in 1909.
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The opinion of the Court was delivered by
Mr. Justice; Hydrick.
The statement of facts upon which the case was heard, which will be reported, shows that plaintiff has not the legal title to the lot which'he contracted to convey. The deed from Robert Fleming to John F. Meyers (1868) was upon trust,
inter alia,
“that said trustee, or his heirs or successors in the trust, shall convey the premises to such persons and for such estates as Anna Dora Fleming, by her last will and testament, shall direct.” It is clear, therefore, that the trust was not executed, and that the legal title has never passed out of the trustee, John F. Meyers, and his heirs. In
Huckabee v. Newton,
23 S. C. 291, it was held that' “In actions affecting the fee in real estate, where the legal title is in a trustee, he is a necessary party to the action, or, if he be dead, his heirs.”
1
In that case, there was a deed to a trustee, his heirs and assigns, to permit D. to enjoy the land for her life, without rent, and at her death to convey the same to her children then living, and to the children of such as were dead. Held, “that the remainder was contingent, and the trust was not executed on the death of L., and in an action for partition, the trustee being dead, his heir was a necessary party.” Here, as there, the trustee had a duty to perform, to wit, to convey to such persons as Mrs. Fleming by her will should direct. Therefore the trust was not executed. The decision in
Huckabee v. Newton
was reaffirmed in
Ayer v. Ritter,
29 S. C. 135,
7
S. E. 53, where it was held that the
cestui que trust
to whom it was the duty of the trustees to convey, under an executory trust, could not maintain an action to recover possession of the land, in the absence of a deed from the trustees, as he had no legal title. See, also,
Steele v. Smith,
84 S. C. 464, 66 S. E. 200, 29 L. R. A. (N. S.) 939. As neither John F. Meyers, who has long been dead, nor his heirs, nor any legally substtuted trustee, under the deed bf Robert Fleming to John F. Meyers, was before the Court in any of the proceedings mentioned, the decree of the Court was ineffectual to affect or pass the
legal title, which is still, under the authorities above cited, and numerous others that might be cited, in the heir of John F. Meyers.
2, 3
It follows that the alleged deed of Mrs. Fleming to her son, Robert T. Fleming, in 1906, did not convey the legal title, since it was not in Mrs. Fleming. It has been suggested, however, that, as Robert Fleming, the elder; acknowledged that a part of the purchase money for the lot was paid with money belonging to his wife, Mrs. Anna Dora Fleming, a trust resulted in her favor. True, but only
pro tanto,
and even to that extent it gave her only an equitable title. The legal title was still in Robert Fleming, and was conveyed by him to John F. Meyers, and is still in the heir of John F. Meyers. But the deed of Robert Fleming to John F. Meyers declares the trust, so that there is no need to resort to the equitablé doctrine of resulting trust. That deed was spread upon the record, and after such great lapse of time, it must be presumed that Mrs. Fleming knew of and acquiesced in it. At any rate, no matter what may have been her equitable right in the premises, she never had the legal title.
In
Manning v. Screven,
56 S. C. 78, 34 S. E. 22, the Court said :
“A
resulting trust arises in favor of one who pays the purchase money of an estate and takes title in the name of another, because of the presumption that he who pays for a thing intends a beneficial interest therein for himself, but this presumption cannot arise when a contrary intént appears, since it is based on the absence of evidence of such contrary intent. Perry on Trusts, sec.. 124; Adams Equity (7th Ed.), pp. 33, 34. In this case the trust deed expressly defines the estate intended for Frances Knox, and it further appears that the consideration paid by her secured, also, an independent covenant by the life tenant to provide for her a comfortable home and support on said land during her life or until the death of the life tenant.”
So here the trust deed expressly defines the estate intended for Anna Dora Fleming, and no other intention or estate can be presumed. It follows that her rights in the property were equitable only, and that her disposition of it, to be valid, must have been made in accordance with the terms of the deed, under which her power of disposition was to be “by her last will and testament.”
4
It is well settled that “Where the instrument creating a power specifies the nature of the instrument by which it may be executed, as where it is to be executed by will, or by deed, the power can be exercised only in the manner specified.” 21 R. C. L. 793.
The language above quoted is rested in part upon the decision of this Court in
Bentham v. Smith,
Cheves Eq. 33, 34 Am. Dec. 599, which fully supports the text, and it is unquestionably the law in this State. See
Manning v. Screven,
56 S. C. 78, 34 S. E. 22. See, also, the opinion of Chief Justice McIver, in
Humphrey v. Campbell,
59 S. C. 47, 37 S. E. 26, and
Aaron v. Beck, 9
Rich. Eq. 411, and
Wilson v. Gaines, 9
Rich. Eq. 420. It follows that, as Mrs. Fleming had no power to dispose of the land by deed, her deed of 1906 was ineffectual to convey the legal title.
5, 6
It may be said, however, that her right to dispose of the property by deed is
res judicata,
as the Court sustained the deed in the. proceeding had in 1917. There are two reasons why that contention cannot be sustained. First, in neither of those proceedings was the holder of the legal title before the Court, and it follows that the judgment was ineffectual to affect or pass the legal title. Second, in the proceeding had in 1909, the Court decreed against Robert Fleming as to any other interest than that given him under his mother’s will. A judgment of the Court, having jurisdiction of the parties in interest, is binding upon them, until set aside in some manner prescribed by law. The Code provides that a judgment is a final determination of the rights of the parties, and the only mode of
reversing or modifying it is by appeal. Hence it is settled by numerous decisions of this Court that one Circuit Judge has no jurisdiction to review and reverse or modify in any material respect the judgment of another. That does not mean that a judgment may not be attacked and set aside for fraud, accident, or mistake, which means, of course, a mistake of fact and not one of law, or that a new trial may not be granted for after-discovered evidence. But there is nothing in the record to show that the judgment of 1909 was altered in 1917 for any of the reasons above stated. The nearest approach to a valid ground of interference with it is the mere inference that the deed of 1906 was discovered after the proceeding in 1909. But there is absolutely nothing in the record to show that it was “after-discovered evidence” in the legal sense of the phrase, and discovered under such circumstances as entitled the party to a new trial. Until such a showing was made, the Judge who heard the proceeding in 1917 had no jurisdiction to disturb the judgment of 1909. It would be extremely dangerous, and introduce untold mischief into the administration of justice, if it were otherwise. But in any view of the case, as has already been shown, as the holder of the legal title was not before the Court in either proceeding, the judgment in neither affected it.
7
It has been held by this Court, in cases too numerous to mention, that the Courts have no power to make or modify deeds or wills made according to law. If the right, which is deemed by most people a very sacred one, of disposing of one’s property as he may see fit is to be preserved in this State, the Judges must resolutely set their face against a practice, which is said to be too common, of destroying trusts created by will or deed, or interfering with the testator’s or grantor’s disposition thereof by consent decrees, especially where the rights and interests of infants or contingent remaindermen are affected. Where the parties are
sui juris
and their rights alone are affected,
they may, of course, do as they please. • But where the rights of infants, or unborn remaindermen, who are only constructively before the Court, are to be affected, the Court should see to it that theirs are not injuriously affected. It is the duty of the Courts to preserve and not destroy or allow the parties in interest to destroy or alter trusts and other dispositions of property, where the same have been made and created according to law, and violate no rule of law; otherwise the
jus disponendi
is of no value.
It must not be understood that the Courts should not exercise such power over trust estates, which is a well recognized feature of equitable jurisdiction, as may be necessary, to prevent them from going to waste, or to make necessary improvements for the maintenance of beneficiaries, or to change investments, and the like. But even these powers are to be exercised with great caution, and generally so as to preserve rather than to destroy trust and other dispositions of property.