Crawford, Justice..
B. M. Hathorn sold and conveyed to John B. Maynard 700 acres of land known as the Greer place. His sons, N. W. Hathorn and N. J. Hathorn, filed their bill in equity against him and John B. Maynard, in which they alleged that he was a trustee for their mother, Narcissa L. Hathorn, and themselves, and that the property sold was theirs in trust; that the said Maynard, who had bought it, knew that it was their trust property, although the title was in the said B. M. Hathorn. The prayer of the bill was that the said B. M. Hathorn be removed from his trust, and that the deed be canceled. The defendant, Maynard, by his answer, denied the material allegations affecting him, and upon the trial, under the evidence and the charge of the court, the jury found in his favor; whereupon the complainants moved for a new trial on several grounds of error alleged to have been committed by the judge and the jury upon the said trial. On the hearing of the mo[172]*172tion for a new trial, the same was overruled by the court, and the complainants excepted.
1. Grounds i, 2, 3, 4, 5, 6, 7, arise upon the testimony under the instructions of the court applicable thereto, and of which the jury considered, and by its finding negatived the facts asserted that they found either contrary to law or to the charge of the court. A doubt might possibly arise under the sixth ground, as to whether they did not find contrary to the charge wherein the judge instructs them, that if Maynard did not have notice of the presence of the trust in the Greer land, and yet had notice of the mingling by Hathorn of his own estate with that of the .trust so that he could not identify them, then the burden “would be on him to show that the trust funds did not go ■Into the Greer place, and that it devolved upon h-im to point out and identify the trust property if he would save his own.
We think that the judge put, in this particular charge, -the burden too heavily upon Maynard, in requiring him to show anything more than that he had no notice of the •trust funds having gone into the Greer place, even though Ihe might have known something of the mixing of the funds. The further duty of pointing out and identifying the trust property was no part of his duty, if he could :show that he was an innocent purchaser, and that none ■other was involved in the litigation. If none of the trust property were in existence, yet if Maynard bought this in ■good faith and it was free from the trust, his title was perfect, without being called on to point and identify what might or might not be found.
2. The refusal of the court to charge as requested in the eighth ground was not error. Where a deed, by its very terms, conveys in trust only four sevenths of the land to one party and three-sevenths to another—not in trust, but unconditionally—it would be error to instruct the jury that they might find that it all was trust property, notwithstanding the recitals in the deed. The highest evidence of what the intention was would be what it said.
[173]*1733. The ninth ground of error was the refusal of the court to give in charge the following request without modification : “ Even if Hathorn gave Maynard assurances that no trust money had gone into the Greer place, Maynard acted on this assurance at his peril, and if it turned out to be untrue he is not protected. A cestui que trust is not bound by statements made by a trustee to enable him to violate his trust.” The first part of this charge was modified by adding that “ unless, in your judgment, he acted upon such information as became a prudent man in making inquiry after the truth.” To the last part he added the words: “If you are satisfied in this case such statements were made with such a purpose.”
To determine whether there was error in these modifi•cations, it is necessary to look at the issue and the testimony. Among the first were, whether the trust fund went into the land at all, and if it did, had Maynard notice of that fact? The objection to the qualification is, that it did not require Maynard to go further and inquire as to the matter before acting—that he should have sought information other than that given him by Hathorn.
According to the evidence, Hathorn had managed and •controlled this estate himself from 1858 to the time of the trial; any knowledge, therefore, in possession of another must have come from him. The interest of Hathorn in the object sought by both himself and Maynard, made it necessary for him to speak the truth. At last it was but a mere question of the diligence of one in search of truth, and ■as Hathorn had no motive tempting him to deceive Maynard, the necessity for further inquiry, the jury doubtless thought, did not exist.
4. The second qualification was a proper one, because the charge assumed that the statements made by Hathorn were made to enable him to violate his trust, and therefore to add, “if they were made for such a purpose,” then that would make the charge right.
5. The tenth ground was not insisted upon. The eleventh [174]*174was the giving in charge the following request: "If Hathorn and wife took a deed jointly to the Barron place,, he three-sevenths and she four-sevenths, they were tenants-in common ; and if Hathorn in paying for his interest used: a portion of his wife’s profits, derived from the sale of the place, this, without more, did not destroy their joint interest in the property afterwards purchased with the proceeds of such a sale, but it made Hathorn the debtor of his wife to the extent of her money so used, which could, be settled between them at any time.”
Taking the case made by the testimony and this charge,, we gather its meaning to be that if these parties were co-tenants in the land, and if Hathorn used this money so-received from a sale of the joint property of himself and his co-tenant, that that act without more would not destroy their joint interest in property afterwards purchased with the proceeds of such sale, and if he did thus use that money he might settle the debt either then or subsequently. The main and important fact being whether he-had or had not so settled the liability.
6. The twelfth ground of error was, because the court refused the following request:
“ If Hathorn had mixed his own and the trust funds, so that he could not identify what belonged to the trust estate, he could not convey property to his cestui que trust which she did not agree to take in full settlement with her and thus discharge his liability to the trust estate. At all events, it is incumbent on him, or Maynard claiming under him, to show clearly and satisfactorily that the property he conveyed to his cestui que trust was fully sufficient to cover his indebtedness to the trust estate. The burden-of proof is on the trustee or Maynard to prove this to the-entire satisfaction of the jury.”
This charge as asked, in the first part of it, limits any conveyance which Hathorn might make to a full settlement, before the property which had been mixed could be separated and conveyed at all, whereas one of the very [175]*175•questions made was, whether a part or all of rhe trust •estate had been fully accounted for so as to leave the ■Greer place wholly or partially free from the trust. In the latter part, of it, it was objectionable because it required Maynard to prove that the other property, and with which .he had no concern, was sufficient to settle with the cestui que .trust.
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Crawford, Justice..
B. M. Hathorn sold and conveyed to John B. Maynard 700 acres of land known as the Greer place. His sons, N. W. Hathorn and N. J. Hathorn, filed their bill in equity against him and John B. Maynard, in which they alleged that he was a trustee for their mother, Narcissa L. Hathorn, and themselves, and that the property sold was theirs in trust; that the said Maynard, who had bought it, knew that it was their trust property, although the title was in the said B. M. Hathorn. The prayer of the bill was that the said B. M. Hathorn be removed from his trust, and that the deed be canceled. The defendant, Maynard, by his answer, denied the material allegations affecting him, and upon the trial, under the evidence and the charge of the court, the jury found in his favor; whereupon the complainants moved for a new trial on several grounds of error alleged to have been committed by the judge and the jury upon the said trial. On the hearing of the mo[172]*172tion for a new trial, the same was overruled by the court, and the complainants excepted.
1. Grounds i, 2, 3, 4, 5, 6, 7, arise upon the testimony under the instructions of the court applicable thereto, and of which the jury considered, and by its finding negatived the facts asserted that they found either contrary to law or to the charge of the court. A doubt might possibly arise under the sixth ground, as to whether they did not find contrary to the charge wherein the judge instructs them, that if Maynard did not have notice of the presence of the trust in the Greer land, and yet had notice of the mingling by Hathorn of his own estate with that of the .trust so that he could not identify them, then the burden “would be on him to show that the trust funds did not go ■Into the Greer place, and that it devolved upon h-im to point out and identify the trust property if he would save his own.
We think that the judge put, in this particular charge, -the burden too heavily upon Maynard, in requiring him to show anything more than that he had no notice of the •trust funds having gone into the Greer place, even though Ihe might have known something of the mixing of the funds. The further duty of pointing out and identifying the trust property was no part of his duty, if he could :show that he was an innocent purchaser, and that none ■other was involved in the litigation. If none of the trust property were in existence, yet if Maynard bought this in ■good faith and it was free from the trust, his title was perfect, without being called on to point and identify what might or might not be found.
2. The refusal of the court to charge as requested in the eighth ground was not error. Where a deed, by its very terms, conveys in trust only four sevenths of the land to one party and three-sevenths to another—not in trust, but unconditionally—it would be error to instruct the jury that they might find that it all was trust property, notwithstanding the recitals in the deed. The highest evidence of what the intention was would be what it said.
[173]*1733. The ninth ground of error was the refusal of the court to give in charge the following request without modification : “ Even if Hathorn gave Maynard assurances that no trust money had gone into the Greer place, Maynard acted on this assurance at his peril, and if it turned out to be untrue he is not protected. A cestui que trust is not bound by statements made by a trustee to enable him to violate his trust.” The first part of this charge was modified by adding that “ unless, in your judgment, he acted upon such information as became a prudent man in making inquiry after the truth.” To the last part he added the words: “If you are satisfied in this case such statements were made with such a purpose.”
To determine whether there was error in these modifi•cations, it is necessary to look at the issue and the testimony. Among the first were, whether the trust fund went into the land at all, and if it did, had Maynard notice of that fact? The objection to the qualification is, that it did not require Maynard to go further and inquire as to the matter before acting—that he should have sought information other than that given him by Hathorn.
According to the evidence, Hathorn had managed and •controlled this estate himself from 1858 to the time of the trial; any knowledge, therefore, in possession of another must have come from him. The interest of Hathorn in the object sought by both himself and Maynard, made it necessary for him to speak the truth. At last it was but a mere question of the diligence of one in search of truth, and ■as Hathorn had no motive tempting him to deceive Maynard, the necessity for further inquiry, the jury doubtless thought, did not exist.
4. The second qualification was a proper one, because the charge assumed that the statements made by Hathorn were made to enable him to violate his trust, and therefore to add, “if they were made for such a purpose,” then that would make the charge right.
5. The tenth ground was not insisted upon. The eleventh [174]*174was the giving in charge the following request: "If Hathorn and wife took a deed jointly to the Barron place,, he three-sevenths and she four-sevenths, they were tenants-in common ; and if Hathorn in paying for his interest used: a portion of his wife’s profits, derived from the sale of the place, this, without more, did not destroy their joint interest in the property afterwards purchased with the proceeds of such a sale, but it made Hathorn the debtor of his wife to the extent of her money so used, which could, be settled between them at any time.”
Taking the case made by the testimony and this charge,, we gather its meaning to be that if these parties were co-tenants in the land, and if Hathorn used this money so-received from a sale of the joint property of himself and his co-tenant, that that act without more would not destroy their joint interest in property afterwards purchased with the proceeds of such sale, and if he did thus use that money he might settle the debt either then or subsequently. The main and important fact being whether he-had or had not so settled the liability.
6. The twelfth ground of error was, because the court refused the following request:
“ If Hathorn had mixed his own and the trust funds, so that he could not identify what belonged to the trust estate, he could not convey property to his cestui que trust which she did not agree to take in full settlement with her and thus discharge his liability to the trust estate. At all events, it is incumbent on him, or Maynard claiming under him, to show clearly and satisfactorily that the property he conveyed to his cestui que trust was fully sufficient to cover his indebtedness to the trust estate. The burden-of proof is on the trustee or Maynard to prove this to the-entire satisfaction of the jury.”
This charge as asked, in the first part of it, limits any conveyance which Hathorn might make to a full settlement, before the property which had been mixed could be separated and conveyed at all, whereas one of the very [175]*175•questions made was, whether a part or all of rhe trust •estate had been fully accounted for so as to leave the ■Greer place wholly or partially free from the trust. In the latter part, of it, it was objectionable because it required Maynard to prove that the other property, and with which .he had no concern, was sufficient to settle with the cestui que .trust. To have made it applicable and unobjectionable, •it needed a qualification to the effect that Maynard must 'have known at the time that the funds had been mixed.
7. The thirteenth, in substance, sets out that under the original deed of trust, Hathorn had the right to use the rents, issues and profits in the support, maintenance and education of his cesUii que trusts, and although the property may have been mixed with his own, yet if he has fully .accounted and settled with them by conveying to them an amount equal to that of the trust funds originally received, together with their share of the profits, then they cannot recover. . ;
This, in effect, is but instructing the jury that if the -complainants had been fidly paid by the conveyance to them of property equal to the value of the original .amount received, that then they could not recover anything more, and this certainly was the law.
14. This was not warranted by the testimony and should •have been refused.
8. The fifteenth ground was because the court charged the jury in substance : That if Hathorn mingled his own with the trust funds, yet he had the right to settle with his cestui que trusts by conveying to them an amount of property .equal in value to the corpus of their estate and the profits .thereon, and if they are now in possession of such property, claiming and enjoying the same, it is evidence of •their acceptance of, and satisfaction at, such settlement.
The only new phase in which this charge puts the law to the jury is, that the possession of property, together ■with a claim of right and enjoyment, is evidence of the acceptance and ratification of the manner in which the [176]*176same was acquired. We concur with the judge in the-principle that it is evidence for the consideration of the-jury, but in view of the other testimony we think that he-should have coupled it with the further charge, that at the-time of the conveyance and settlement, some change was-necessary to indicate the transfer and acceptance besides-the mere paper title.
9. The seventeenth: Because the court required the complainants to introduce the original deed of trust after it had been made to appear that the same was in writing, or he-would rule out all the evidence about the sale of the-Barron place. -The question at issue as to that place was, what proportion of it was conveyed in trust? Hathorn insisted and testified that he intended it all to be so conveyed. The deed itself, of course, was the highest and best evidence of intention and act, and was properly ruled” in by the court, otherwise the parol testimony should have-been ruled out.
xo. The eighteenth and last ground is that the verdict is-, against equity and 'justice and the charge of the court.. We do net consider this ground well taken. This suit was brought by the sons against the father and uncle, and joined in by the wife against the husband and brother, to-set up a trust that appears to have been abandoned for-many years, and was resurrected to defeat the recovery by Maynard of the Greer place, who not only had paid honest money for it, but by his timely aid saved for his sister and her children, two' of whom are the complainants, much of what remains to them. A, different verdict would be against equity and justice if Maynard, Hanson and Mrs. White are to be believed, and the juiy, it seems, did believe them, for they testify that the money borrowed from them went to pay for the Greer place, as. Hathorn himself stated to them, so that it never was any part of the trust estate.
Whilst, therefore, some errors may have been committed in giving the requests to charge, and some in the refusals^ [177]*177to charge as requested, yet the general charge submitted the law of the case properly to the jury, and their verdict being abundantly supported by the proof, the judgment is affirmed.
Judgment affirmed.