Mr. Chief Justice Cartwright
delivered the opinion of the court:
This action of ejectment was brought by Fountain T. McFall, appellee, in the circuit court of Christian county, against Henry Kirkpatrick and others, the appellants, to recover the possession of the east one-half of the west one-half of lot 5, in block 3, in Railroad addition to Pana, in said county. The plaintiff by his declaration claimed title in fee, and the defendants pleaded the general issue and several special pleas. The issues were tried by the court without a jury and a judgment was rendered in favor of the plaintiff, from which the defendants appealed.
The facts are not disputed, and are as follows: On March 29, 1858, Elias P. Sanders was the owner of the premises, and with his wife made a deed of the same to William A. Goodrich in form of bargain and sale, with full covenants of warranty. Following the names of the parties the purpose of the conveyance is stated, as follows:
“Whereas, Eliza Jane Houston, wife of James W, Houston, of Pana, in said county and State, being desirous of purchasing the premises hereinafter described and of holding the same to her own purpose, use and benefit and of enjoying the same peaceable, rents, issues and incomes arising therefrom during the term of her natural life, free from the control, liabilities or interferences of any husband that she now has or may hereafter have. [The deed then recites a consideration of $150 paid by Eliza J. Houston and a further consideration of one dollar paid by Goodrich, followed by words of conveyance to Goodrich.] In trust and to and for the several uses, interest and purposes hereinafter mentioned, namely: „
“First—In trust to have the same and to take and collect the rents, issues and profits thereof, and out of the same to keep the said premises in good order and repair, and to pay all taxes, assessments and charges that may be imposed thereon.
“Second—In trust to pay the residue of such rents, issues and income to the said Eliza J. Houston upon her sole and separate receipt, to the interest that she may enjoy, 'possess and have the same free from the control, interference or liabilities of any husband she now has or may have' hereafter during the term of her natural life.
“Thirdly—In trust to convey the said land to such person or persons as she, the said Elvira J. Houston, by her last will and testament, or by an instrument in the nature of a last will and testament, subscribed by her in the presence of two credible witnesses. And it is hereby expressly declared by the parties that upon the decease of the said Elvira J. Houston the said trusts shall cease and determine, and the land and premises above described shall belong,, in fee simple absolute, to such person or persons as the said Elvira J. Houston shall, as aforesaid, direct and appoint, and in default of such appointment then to her heirs and assigns, to her and their use forever.”
On April 16, 1859, Eliza J. Houston and her husband executed a warranty deed for the premises to Zephaniah R. Porter, and the title conveyed by that deed passed, through sundry mesne conveyances, to William B. Little. On March 16, 1871, William B. Little filed his bill in equity in the circuit court of Christian county against Eliza J. Houston, Elias P. Sanders and William A. Goodrich, setting out the deed from Sanders and the various conveyances by which he acquired title, and alleging that the consideration for the deed from Sanders was paid by James W. Houston, husband of Eliza J. Plouston; that Goodrich never paid anything and had no knowledge of the conveyance to him, and neveu assented to it or acted in any way under the deed; that Eliza J. Houston and her husband conveyed the premises to Porter for a consideration of $300, in fee simple, and the title thereby conveyed had passed to the complainant; that the legal title was apparently in Goodrich, who ought to make a deed to the complainant, and that Eliza J. Houston fraudulently claimed right and title to the premises, and was trying to induce Goodrich, in whom the legal title apparently was, to convey the premises by deed, as the said Eliza J. Plouston might designate. The prayer of the bill was that the court would decree that the said Goodrich should make to complainant a deed of release and quit-claim of the premises; that all rights, titles and interests, of every nature and kind whatsoever, (if any,) of the said Sanders and the said Eliza J. Houston, be extinguished or decreed to be in the complainant, and that the court would quiet the title to said premises and remove the outstanding legal title in Goodrich and decree the same to the complainant. The venue was changed, by agreement, to Shelby county, where the bill was dismissed as to Sanders. Eliza J. Houston and Goodrich were defaulted for failing to answer the bill, in pursuance to a rule theretofore entered by the court, and a final decree was entered at the September term, 1872, reciting that the matters and things alleged in the bill were taken as confessed by Goodrich and Eliza J. Houston. The court decreed that William A. Goodrich should within thirty days convey, by deed of quit-claim, all the right, title and interest which he took in and to said premises by virtue of the deed from Sanders; that on failure to make said deed the master in chancery should execute the same for him; that all the right, title and interest of Eliza J. Houston by virtue of the trust deed was in and rightfully belonged to the complainant, and that his title should be, and was, quieted as against the said Goodrich and Eliza J. Houston. On December 12, 1872, the master in chancery executed a deed to William B. Little in pursuance of the decree. On February 8, 1879, the administratrix of the estate of William B. Little, who was then deceased, conveyed the premises to the defendant Henry Kirkpatrick. From the date of that conveyance Kirkpatrick has been in possession of the premises, has erected valuable improvements thereon and has paid all taxes. On March 17, 1891, Eliza J. Houston made her last will and testament, and by the second paragraph devised to her brother, the plaintiff, Fountain T. McFall, all her property. By the third paragraph she referred to the deed from Sanders to Goodrich and the power therein conferred upon her, and declared as follows: “Now, therefore, in pursuance of the power and authority conferred upon me in and by said deed, I do hereby will, devise and bequeath to my said brother, Fountain T. McFall, the remainder, in fee simple absolute, of the lands and premises mentioned in said deed, to have and to hold unto the said Fountain T. McFall and his heirs and assigns forever.” Eliza J. Houston died on November 30, 1905, and the will was admitted to probate. There is no evidence that the deed to Goodrich, the trustee, was ever delivered to him or in his possession, or that he ever took possession of the property or collected any rents, issues or profits or accepted the trust.
One ground upon which a reversal of the judgment is asked is, that the cause of action was barred by the Statute of Limitations. It is contended that the decree of the circuit court of Shelby county and the deed of the master in chancery constituted color of title, and such color of title, with the subsequent conveyance to Henry -Kirkpatrick, and his possession, with payment of taxes, constituted an effectual bar to the plaintiff’s claim. It is not contended that any statute of limitations ran against the exercise of the power by Eliza J. Houston if the power existed when it was exercised. There could be no adverse possession as against the exercise of that power, and if the plaintiff became vested with the legal title at all, it was by the exercise of the power when the will of Eliza J. Houston became effective, in 1905, at her death. There is no statute of limitations which could begin to run against the plaintiff until the power was exercised and no action could be brought to attack a possession of Kirkpatrick which was not adverse to the plaintiff. There can be no doubt that the deed of Eliza J. Houston to Porter conveyed at least an estate for her life, and the possession of anyone under that title could not be adverse to the appointee under the power, whose right or estate could not begin until the termination of the life estate. The cause of action was not barred by any statute of limitations. Mettler v. Miller, 129 Ill. 630; Turner v. Hause, 199 id. 464; Weigel v. Green, 218 id. 227; Schroeder v. Bozarth, 224 id. 310; Willhite v. Berry, 232 id. 331.
The plaintiff could only recover by proving that he had the legal title to the premises at the commencement of the action, and the important question to be determined is whether he had such title. In ejectment, legal titles alone can be considered and adjudicated, and unless the plaintiff showed a good legal title the judgment was wrong, regardless of any question of equities. (Hague v. Porter, 45 Ill. 318; Mester v. Hauser, 94 id. 433; Hayden v. McCloskey, 161 id. 351.) The title of the plaintiff depends solely upon the power of Eliza J. Houston to appoint the estate to him, and that rests upon the deed made by Sanders to Goodrich on the 29th day of March, 1858, and its talcing effect, as a transfer of the legal title, by a sufficient delivery. In order that the legal title should pass to Goodrich as trustee, it was essential that the deed should be delivered to and the trust accepted by him. Whatever equities may have resulted to Eliza J. Houston and her heirs by the making of the deed and the payment of the consideration, a delivery of the deed to the grantee and an acceptance of the same by him was essential to a transfer of the legal title. (Dale v. Lincoln, 62 Ill. 22; Moore v. Flynn, 135 id. 74; Brown v. Brown, 167 id. 631; Dagley v. Black, 197 id. 53; Loring v. Hildreth, (Mass.) 49 N. E. Rep. 652; 28 Am. & Eng. Ency of Law,—2d ed.—896.) The subject of delivery will receive attention hereafter, in connection with the chancery proceeding, but for the present we assume that the deed of trust was valid and took effect by a sufficient delivery, so as to transfer the legal title to Goodrich.
By that deed the premises were conveyed, for a consideration paid by Eliza J. Houston, the purchaser, to Goodrich, under an active trust to take and collect the rents, issues and profits, to keep the premises in good repair, to pay all taxes, assessments and charges, to pay the residue of the rents, issues and incomes to said Eliza J. Houston during her natural life, and to convey the premises to such person or persons as she by her last will and testament, or by an instrument in the nature of a last will and testament, should appoint. It was declared that at the death of Eliza J. Houston the premises were to belong, in fee simple absolute, to the appointee, and in default of appointment then to her heirs and assigns, to her and their use forever. Assuming the delivery of the deed to Goodrich and an acceptance of the deed and trust by him, the legal title passed to Goodrich for the purposes of the trust and an equitable life estate was limited to Eliza J. Houston. By the same instrument there was a limitation to her heirs-at-law, which could only be defeated by the exercise of a power in her to appoint the estate to some one of her own choosing. The trust was an active one and was not executed by the Statute of Uses. It could not be so executed until the trustee should have completed the last active duty imposed upon him by the deed, which was to convey the premises to the appointee of Eliza J. Houston after her death. If any duty is imposed on a trustee to convey the estate he must take and hold the legal title for that purpose, and the operation of the statute is excluded until the duty is performed and the uses remain mere equitable estates, (1 Perry on Trusts,—5th ed.—sec. 305.) In case of an appointment, the legal title would remain in ^Goodrich until he should make a conveyance to an appointee, and if he held the legal title for any purpose, it could only be transferred by a conveyance. The Statute of Uses could not operate at all in such a case, for the reason that the legal title would be transferred by the conveyance and not by any operation of the statute. Where a trustee is required to convey title to beneficiaries on the happening of a certain event, the trust is not a passive or dry trust and the Statute of Uses does not operate to vest the title in the usee. (Lawrence v. Lawrence, 181 Ill. 248.) If a trustee is directed and empowered to convey land the legal estate necessarily vests in him, and if he is required to convey a fee the fee must be conferred upon him. (Preachers’ Aid Society v. England, 106 Ill. 125; Coryell v. Klehm, 157 id. 462; Glover v. Condell, 163 id. 566.) In Meacham v. Steele, 93 Ill. 135, the court repudiated a supposed test that the statute will intervene wherever no one but a cestui que trust has any beneficiary interest in the estate, which it was said was no test at all. The court said that the true test, where the trust is an expressed one, is to look at the terms of the instrument creating it to ascertain what duties are imposed on the trustee and then determine whether or not they have been performed, and if it appears that they have not, the trust still exists and the statute has not intervened. In this case the duty imposed upon Goodrich to convey to the appointee of Eliza J. Houston has not been performed, and if the legal title ever vested in him it is still there, leaving out of view the chancery proceeding and the master’s deed.
The deed of Sanders was made to Goodrich and his successors and assigns in trust, not for the lifetime of Eliza J. Houston, with a legal remainder to her heirs, but as an absolute conveyance of the whole legal title, with the use in her for her lifetime and an equitable right to a conveyance of the legal title in her appointee or heirs, so that there was no use remaining in the grantor awaiting a possible appointment and the entire estate passed by the deed. The third paragraph of the deed declared that at the death of Elvira (Eliza) J. Houston the trust'should cease and the premises should belong in fee simple absolute to her appointee, or in default of appointment, “to her heirs and assigns, to her and their use forever.” To hold that a legal remainder was thereby limited would require striking out that part of the same clause by which the trustee took the legal title in trust to convey to the appointee, and that would be a violation of- all rules of construction. If we give effect to all the provisions of the deed we must hold that upon the death of Eliza J. Houston her appointee, or in default of appointment, her heirs, would be entitled to a conveyance in fee simple absolute, and that accords with the rules of construction applied by the courts. The appointee and heirs are connected in the same sentence, and if it was intended there should be a conveyance to one there must have been the same intention as to the others. There is no ground for separating them and declaring the estate of one legal and the other equitable.
Inasmuch as Goodrich took the legal title, which he would hold until the active duty of making a conveyance had been performed, the limitation in the deed to the heirs-at-law of Eliza J. Houston was of the same kind and quality as her life estate, both being equitable. The rule in Shelley’s case, which is an inflexible rule of property in this State, therefore gave to Eliza J. Houston an equitable- fee. (Baker v. Scott, 62 Ill. 86; Brislain v. Wilson, 63 id. 173; Kales on Future Interests, sec. 133.) Although the rule is a rule of property and is not .intended to effectuate the actual intention of the parties, its operation in this case does not defeat such intention. Eliza J. Houston was the purchaser of the premises and paid the consideration, and the declared purpose of the trust was to give her the property free from the control of her husband. It was a simple case of a purchase of premises, which she desired should be free from the control of her husband, but which she could devise or otherwise would go to her heirs-at-law. The appointment was to be by her last will and testament or by ,an instrument in that nature, and an instrument in the nature of a will means a will, since no other instrument is in the nature of a will. Sugden on Powers, 121.
The legal title being in Goodrich and the equitable fee in Eliza J. Houston, the power which was given to her was appendant or appurtenant to her estate. Powers are appendant or appurtenant when the donee has an estate in the land and the power is to take effect wholly or in part but of that estate. A power is appendant when the estate created by its exercise affects the estate and interest of the donee of the power. (Farwell on Powers, 8.) Appendant or appurtenant powers are annexed to the estate of the do-nee, and when created are to be executed out of and must be concurrent with and have their being and continuance, at least for some part, out of the estate of the donee. (Powell on Powers, 10.) If one is tenant for life with power to lease in possession, any lease made by him must commence during his life. The power is appendant to his estate, and the effect of the power is to prevent the lease terminating by his death. 2 Hilliard on Real Prop. 828; Williams on Real Prop. (17th ed.) 130.
The exercise of a power appendant is optional with the donee of the power and an alienation of his estate extinguishes the power. (2 Hilliard on Real Prop. 843.) If lands are settled on one with a power of appointment to uses and upon him in fee if he fail to appoint, he may alien the estate as his own and will thereby defeat and extinguish the power. (Washburn on Real Prop. sec. 1668.) If lands are limited to such uses as A shall appoint and in default of appointment to the use of A and his heirs, he may dispose of the lands either by an exercise of the power or by conveyance of his estate. If he exercises the power the estate limited to him in default of appointment is destroyed, but if he conveys his estate the power is extinguished. (Williams on Real Prop.—17th ed.—446.) If the donee of the power has an estate in the land and the exercise of the power would necessarily affect his estate, as where a tenant in fee has power to appoint to others in fee, an alienation of his estate will destroy the power, since it would be a fraud on the alienee if the grantor could thereafter, by exercising the power optional with him, derogate from his own grant. (1 Tiedeman on Real Prop. 642.) If a donee has a fee subject to a power to appoint the fee to another and the donee conveys the whole estate, the alienation of the estate .operates as an extinguishment of the power where it cannot be exercised without defeating the interest granted. The power is denied because the exercise of it would be derogatory to the grant, which cannot be permitted. (1 Sugden on Powers,— 8th ed.—74, 75; 2 Chance on Powers, 3149.) In the case of Penne v. Peacock, (Cases in Equity, Temp. Talbot,) Jane Peacock conveyed certain premises to trustees in fee, in trust to pay the rents and profits of her sole and separate use for her life and after her decease in trust for such uses as she should by her last will limit and appoint, and for want of such appointment then to her own right heirs forever. She married, and her husband mortgaged part of the lands to the plaintiff for £1000 for a term of five hundred years, and then a fine was levied by husband and wife, who both declared the uses of the fine as to the mortgaged premises to be for securing the principal and interest. Lord Chancellor Talbot held that the power was not a naked power or power in gross, but was appendant and annexed to her inheritance and so destroyed by the fine, since a lease and release, or any other conveyance, would carry with them all powers that are joined to the estate. The Lord Chancellor said that “it must inevitably follow that an estate for life limited to the wife and the remainder limited to her own right heirs in default of any appointment made by her last will are both disposed of by the fine.”
Sugden says (vol. 1, p. 40) : “20—Where an estate is limited to such uses as - A shall appoint, and in default of and until appointment to him in fee, the power is clearly appendant and by a conveyance of his interest would be destroyed.” He gives Penne v. Peacock as an example, and further says: “22—The same rule is applied to personal estate. Therefore, where a man was, under a will, tenant for life of certain funded property and then for such persons, etc., as he should appoint by will, and in default of appointment the trust was for his executors or administrators, it was held that he might assign the fund absolutely, and where, in default'Of appointment, The fund is settled on another, the donee may, with the concurrence of that person, make a present title to the fund, for, by analogy to powers on real estate, such a power may be parted with,—that is, released or extinguished. (Kirkpatrick v. Capel, V. C. T. T. 1819, M. S.; Webb v. Lord Shaftesbury, 3 Myl. & Kee. 599; Cherry v. Boultbee, 2 Kee. 324.) 23—It is to be observed that as to the destruction of the power the effect is the same although the estate is conveyed by operation of law. Thus, it has been determined that where a man, tenant for life, with remainder over and the ultimate remainder to himself in fee, with a power of revocation, became bankrupt and the intermediate estates had become incapable of taking effect, the life estate and remainder in fee, or, rather, the fee in possession, vested in the assignees, and his power of revocation was gone.—Anon. Lofft, 71; Doe v. Britain, 12 Barn. & Ald. 93. See Thorpe v. Goodall, 17 Ves. Jr. 388, 360.”
In 2 Coke upon Littleton the rule is stated in Butler and Hargrave’s Notes, 243b: “IV.—As to powers relating to the estate of the donee of the power in the land: Such of those powers as are in the nature of powers appendant to the estate may, it is agreed, be extinguished by the release, feoffment, fine, or common recovery of the donee of the power. These powers also are liable to be extinguished or suspended by any of the conveyances which are said not to operate by transmutation of the possession, as bargains and sales, leases and releases and covenants to stand seized, for whoever has any estate in the land may convey that estate to another, and it would be unjust that he should after-wards be admitted to avoid or to do anything in derogation from his own grant. Any assurance of this nature, therefore, which carries with it the whole of the grantor’s estate is a total destruction of the powers appendant to that estate.”
The estate which Eliza J. Houston attempted to create in the plaintiff by the exercise of the power was to be raised not only out of the power but also out of her own estate, and that being so, she had a right to extinguish the power and could not afterward exercise it in derogation of her grant. The power was an authority to dispose of the remainder for the benefit of any person she might choose and to declare in whom and in what manner the title should vest at her death. It was not limited or special and it was not a power in the nature of a trust, which she was bound to exercise either in favor of some particular person or class of persons. The deed created no fiduciary relation between Eliza J. Houston and any person or class of persons, and the exercise of the power being appendant to her estate, she could not be permitted to defeat the estate conveyed by her by afterward exercising the power.
Counsel for appellee takes the position 'that upon the death of Eliza J. Houston the Statute of Uses executed the trust and the legal title vested in the plaintiff as appointee, who could then bring ejectment. It cannot be true in this case, under any view of the law, that the Statute of Uses executed the trust upon the death of Eliza J. Houston, for the reason that the trustee was to retain title for the purpose of making a conveyance to the appointee, and if it were true it could have no influence or effect upon the decisión of the case. Of course, if the power was append-ant to the estate of Eliza J. Houston and her deed was effective to extinguish the power, it would make no difference that at some time in the future the Statute of Uses would otherwise execute the use by transferring the legal title to her appointee. In other words, if the power was extinguished by the execution of her deed it was extinguished forever.
On the general question whether the Statute of Uses ever operates to divest the title of a trustee whose active duties have ceased the courts are not agreed, and there have been expressions in the decisions of this court which are not-harmonious. In Harris v. Cornell, 80 Ill. 54, which was a proceeding in equity to impeach a decree for fraud, the court stated, with an explanation that it was a mere remark, that an assignee in bankruptcy, when the debts of the bankrupt were outlawed and the purposes of the trusts accomplished, ceased to have any title, and the owner of the trust became, by operation of law, re-invested with a legal title and could sue in ejectment. In that case the property of the bankrupt was vested in the assignee by the law for certain purposes and not by any instrument of conveyance. In McNab v. Young, 81 Ill. 11, which was also a proceeding in equity to set aside'deeds and question the title acquired at a judicial sale, there was a trust deed in the nature of a mortgage to secure an indebtedness, and the court, in discussing the question whether the grantee in the-trust deed was a necessary party, said that if the purposes of the trust had been accomplished the grantor would have been vested with the legal title. It was afterward held, in an action of ejectment, that the title of a mortgagee in fee is in the nature of a base or determinable fee and that the term of its existence is measured by -that of the mortgage debt, which eliminated any question of the Statute of Uses. (Barrett v. Hinckley, 124 Ill. 32.) The views of the court on that subject were again stated in Lightcap v. Bradley, 186 Ill. 510. In Kirkland v. Cox, 94 Ill. 400, which was an action of ejectment and the first and only case in which the question was actually involved and a decision necessary, the court, referring to the former cases, said that the statements therein were unadvisedly made, and that “the true doctrine in regard to active trusts, and that adhered to by this court, is expressed in Vallette v. Bennett, 69 Ill. 632, that where the legal title is vested in the trustee, nothing short of a re-conveyance can place the legal title back- in the grantor or his heirs, subject, of course, to the qualification that under certain circumstances such re-conveyance will be presumed without direct proof of the fact.” In Moll v. Gardner, 214 Ill. 248, which was another suit in equity, the court affirmed a decree requiring a trustee to execute deeds of conveyance to the beneficiaries of a trust. In the course of the opinion it was said that a trust which is active may become passive after all of the active duties have been performed, and the trust may become executed by the Statute of Uses and the title vest in the remainder-man. Authorities are referred to in. support of that doctrine, and, among others, the case of Kirkland v. Cox, supra, which holds the contrary, and the case of Meacham v. Steele, supra, where it was said that often the objects of a trust'become defeated or for some cause performance becomes impossible, and then the trust becomes a use and is executed by the statute. That rule did not apply to the case under consideration, and the citation of Kirkland v. Cox shows that there was no intention to overrule the decision in that case. To hold that the statute had executed the use and vested the legal title in the beneficiaries would have been wholly inconsistent with the affirmance of the decree requiring the trustee to convey the legal title. There would have been no ground for equitable interference if there was no existing trust but the legal title had been vested in the cestui que use so that he could sue in ejectment. Perry on Trusts is there cited, and that author says that where the active duties of the trustee have ceased and the whole beneficial interest in the trust estate is in the cestui que trust the Statute of Uses generally executes the legal title of the trustee to the cestui que trust, but that there are cases where the active duties of the trustee having ceased, the legal title does not pass without a conveyance. In such cases it is the duty of the trustee to convey the legal title to the cestui que trust or to such person as he shall appoint, and under proper circumstances a presumption will be raised that the duty has been performed, (1 Perry on Trusts, sec. 351.) In this case the active duty of making a conveyance has not been performed and the legal title must remain in the‘'trustee until that is done. Cary v. Slead, 220 Ill. 508, a suit in equity, and Reichert v. Missouri and Illinois Coal Co. 231 id. 238, a suit on a contract brought by trustees, contain expressions similar to those of Moll v. Gardner, but the question was not-involved in either case. The decision in Kirkland v. Cox has never been criticised or disapproved and there is no contrary decision where the question was involved, and the redi effect of the cases in equity is, that when active duties have ceased it is the duty of the trustee to convey the legal title.
But whatever theory may be adopted as to the operation of the Statute of Uses when active duties have ceased, it could not apply to this case, where the active duty of making the conveyance has not been performed, and if Eliza J. Houston had an equitable fee when she made her deed to Porter, the deed would transfer that fee. It would make no difference what might occur after the destruction of the power. All the authorities are agreed that certain things must concur or the statute does not apply. There must be a cestui que use in esse in whom the legal title may vest. If an estate is limited to the use of some one not in esse or capable of being ascertained, the statute can not have any operation until the cestui que use comes into being or is ascertained. (2 Washburn on Real Property, 113-115.) If the Statute of Uses would execute the trust, it would only be in case of appointment by will and at the death of Eliza J. Houston when the will would become effective. The trust was an executed trust in the sense in which that term is used by the courts. (Massey v. Huntington, 118 Ill. 80; McCartney v. Ridgway, 160 id. 129.) The trust was created’by a deed so clear and certain in all its terms and limitations that the trustee had nothing to do but to carry out all the provisions of the instrument according to its letter. I11 such a trust the rules of property govern, and “if in an executed trust an estate is given to A in trust for B for life, with remainder to his heirs, B takes an equitable fee and may convey the equitable inheritance and exclude his heirs.” 1 Perry on Trusts, sec. 359.
As we’ hold that Eliza J. Houston had an equitable fee, which -she might convey, and her power of appointment was appendant or appurtenant to her estate, it is not necessary to inquire what the effect would have been if the power were considered as a power in gross, which would b.e the case if she had only a life estate and the estate to be created by virtue of the power was to take effect after the termination of her estate, but it has been, held that a power in gross may be released or extinguished by the donee. 22 Am. & Eng. Ency. of Law, (2d ed.) p. 1131; 1 Sugden on Powers, (3d Am. ed.) 158.
As before noted, a delivery to and acceptance by Goodrich was necessary in order to vest the legal title in him, and the question whether a court of equity would protect the beneficiary is not involved in this case, where the inquiry is merely concerning the legal title. Unless a trust is raised by law no one can be compelled to undertake a trust. In an expressed trust no title vests in the trustee unless he expressly or by implication accepts the trust or in some way assumes its duties and liabilities. (1 Perry on Trusts, sec. 259.) Whether a failure to deliver the -deed to Goodrich or the fact that he did not accept the trust or act under the deed would invalidate it or enable the court to appoint another trustee malees no difference here. The bill in equity filed by Little alleged that Goodrich never paid any consideration and had no knowledge of the conveyance to him and that he never assented to it or acted in any way under it. If that was true the legal title never passed to him, and the truth of the allegation was admitted both by him and Eliza J. Houston by their default. The bill also alleged that the deed was made in satisfaction of. an indebtedness from Sanders to James W. Houston, and that the legal title to the premises of record was apparently in Goodrich but the beneficial owner had conveyed her title and the complainant was possessed of it. The bill set out the deed of Eliza J. Houston and husband in hcec verba, and it did not purport to convey an estate for her life but did purport to convey a fee simple absolute. The court was asked to quiet the title so conveyed, and the court, in entering the decree, was dealing with the fee and not with any life estate of Eliza J. Houston. The averments of the bill had no relation to any life estate, but it was charged that Eliza J. Elouston was trying to induce Goodrich to convey the premises by deed, as she might designate. The complainant asked that the apparent legal title in Goodrich should be conveyed to him, and the court so decreed. The court had jurisdiction to hear and determine the question whether the deed had ever been delivered and what was the legal effect of the various deeds set out in the bill, and the decree was final and conclusive upon the parties. (Harmon v. Auditor of Public Accounts, 123 Ill. 122; Stoff v. McGinn, 178 id. 46; Franklin Union v. People, 220 id. 355.) Any person to whom Eliza J. Houston might afterward appoint the estate by will was not ascertained and could not have been made a party even if the will had then been made, since it would be ambulatory and ineffective as an appointment until her death. In such a case it would be intolerable that the court should be powerless to inquire into-and determine the fact whether the trust deed was delivered to and accepted by Goodrich merely because there was a possibility that the power would be exercised in the future in favor of some person then unknown. If such an argument were to prevail it would often happen that the settlement of a title to land would have to remain in abeyance for an indefinite period of time in cases where possible contingent interests were shown to exist. As said by the Supreme Court of Massachusetts in Loring v. Hildreth, supra: “If a deed purporting to create such interests were inadvertently or fraudulently put on record, if such a deed were stolen, or even forged, and put on record by the thief or forger,—nay, even if a forgery were committed in the registry of deeds by making what appeared to be a record of such a deed when in fact no such deed or form of deed existed,—the courts would be powerless to inquire into and determine the facts, because parties purporting to have possible contingent interests could not be brought in or represented. In this way a title might be tied up for an indefinite period by an unauthorized or criminal act, with no power in the courts to afford a remedy. Such a result should not be reached except upon most stringent reasons of necessity.” The courts are not powerless in such a case where the interests of parties not before the court are sufficiently protected by those over whom the court has jurisdiction. Where the owner of a vested estate is before the court, the interests of a contingent remainder-man will be bound although he may not be formally made a party. (American Bible Society v. Price, 115 Ill. 623; Temple v. Scott, 143 id. 290; McCampbell v. Mason, 151 id. 500.) When the bill was filed the plaintiff in this case had no interest and was hot ascertained even as one who might have a possible future interest by the exercise of the power of appointment. The trustee, who it was alleged had never assented to or acted under the trust and to whom the deed was not delivered, was a party, and so was the one by whose act alone any future interest could be brought into existence. Eliza J. Houston, the donee of the power, was the only one who could bring into existence any other estate or turn the course of the ownership of the property, and surely she represented her own appointee as fully and completely as anyone having a future contingent interest could be represented in any case. The court did not expressly adjudicate against the power of appointment, but on the default and confession by the defendants of the facts alleged in the bill the court quieted the title o'f the complainant to the premises and ordered Goodrich to convey all the right, title and interest which he took by the deed. The apparent title of Goodrich was transferred by the deed executed in pursuance 'of the decree, and if he had any title it now rests in the defendant Henry Kirkpatrick. The binding force of the decree cannot be affected by any question whether the court reached a correct conclusion or properly construed the deeds set out in the bill. The doctrine of res judicata does not rest on such a ground. If Goodrich had the legal title a deed by him would pass that title and defeat an action of ejectment against the grantee, whether the deed was rightfully made or made in violation of the trust under which the title was held, (Walton v. Follansbee, 131 Ill. 147,) and the master’s deed made in his behalf in pursuance of the decree would not be less effective to transfer any title he had. The legal title alone is involved in this case, and there is no view presented by counsel which would justify a finding that the plaintiff is the legal owner of the premises or that he can maintain an action of ejectment.
The judgment of the circuit court is reversed and the cause remanded.
Reversed and remanded.