provided the letter marks were the same. Therefore complainants aver that if it be true, as defendants claim, that those bales of cotton were delivered, yet they were delivred and received with the distinct understanding that they were in exchange for other bills of lading, calling for a like number of bales, and that these bills of lading which have never yet been surrendered should represent and be good for the number of bales of cotton called for by them, treating each bale as an average bale, to wit, 500 pounds, and of middling quality, the value of which was 9 cents per pound, or $855 in the aggregate. After the said cotton season was over, and after complainants' agent Reed had, with the defendant's agent, also vainly tried to find said cotton, and when it was believed that the said cotton had miscarried in some unknown way, Reed turned over said bills of lading to T. J. Savage, agent for the said railroad company at Jackson, and received from him a receipt as follows: Jackson, Miss., 5/6/01. Received of D. W. Reed, B-L covering 19 b/c from Y & M. V. Said B./L. attached to claim # 275. J. T. Savage.' The bills of lading were also turned over to the defendant company in order to aid them in tracing the cotton, and while in the possession of the defendant some one of its clerks made certain notations on each of them relating to the delivery of the cotton. These memoranda are not part of the bills of lading, and are improperly noted on them, and are not evidence, since they were placed there without authority by some one after presentation, and pending examination of the claim for shortage. Complainants are not advised and have no means of ascertaining whether or not said bales of cotton were delivered to the compress company, and whether they were lost through its fault or through the fault of the railroad company, but private books kept by each of the companies ought to show and will show which of the companies is primarily liable for the loss. Even if it be true that the specific bales of cotton were delivered in exchange, yet it still remains true that the shortage for the like amounts still existed, and has been continued throughout until now; and it is impossible that such shortage could apply or represent a shipment over any other line of railroad leading into the compress, since delivery was made according to marks, or on each of the bills of lading now in complainants' possession are marks, showing consignors and purchases along the line of defendant railroad, and no delivery could have been made, or could have been accepted, or ever was made, except cotton which came over the same railroad, and which bore the same marks of the various shippers, always kept separate by complainants. The defendant railroad company declines to pay for this cotton short, because it claims that it has made delivery to the compress company. The compress company, on the other hand, denies liability, claiming that the specific bales of cot

ton shown by the bills of lading have been delivered. Complainants are informed, believe, and aver that at the end of the cotton season of 1900-1901 there were a number of bales of cotton 'over'-that is, cotton undelivered-and these were more in number than those called for by complainants' bills of lading. If this be true, such cotton belongs to these complainants. They are, however, without knowledge or means of definite information as to this, and therefore they are entitled to discovery from the compress company as to what cotton was in their compress at the close of the business season as 'over,' and to have the same, or the value of the same, applied to the satisfaction of their claim as above stated. However, complainants say that, whether there were any 'overs' or not, defendants are jointly liable if the total number of bales of cotton containing any of the marks noted on the bills of lading were delivered to the compress company, since the compress company was the agent of the railroad company for making delivery. Complainants file herewith the said original bills of lading as parts hereof.

"Premises considered, complainants pray that subpoenas issue for the defendants, returnable to the October term of court; that defendants make answer, but not under oath, and discover the whereabouts of the cotton called for by the bills of lading, and yet short, and, if delivered to the compress, that the compress make discovery as to what disposition it made of them, and, if any cotton was left over, as to whether or not it represented the shortage called for by these bills of lading, and, in any event, that defendants be held liable to complainants for the value of the said nineteen bales of cotton at the time it should have been delivered."

McWillie & Thompson, for appellant Alabama & V. R. Co. Mayes & Longstreet, for appellant Yazoo & M. V. R. Co. Green & Green, for appellant Compress Co. Alexander & Alexander, for appellees.

WHITFIELD, C. J. The reporter will set out the bill of complaint in full, in order to a clear comprehension of our opinion. Without special reference in this opinion to the particular allegations of the bill, we summarize by saying that the gravamen of the bill is as follows: That the railroad company and the compress company, for their mutual convenience, entered into a joint traffic arrangement whereby cotton shipped from different points along the line of railway to Jackson for compression, before being shipped through to its destination, should be delivered into the compress yards; the railroad company having no place wherein cotton could be delivered. Upon the cotton being so delivered, the compress company would issue to the railroad company compress tickets, which tickets stood not for any special bales, by marks and numbers, but for any bales of average weight and quality;

and the railroad company so receiving such compress tickets would, when the consignee came with his bill of lading, demanding his cotton, deliver to him no actual cotton at all, nor the particular bales called for by marks and numbers in his bill of lading, but only the aforesaid compress tickets. This suit is for a certain number of bales short on the season's dealing. The bill avers what has been stated with great clearness and particularity, and then proceeds to charge that the cotton short is due complainants by the defendants-the railroad primarily, and the compress company perhaps secondarily-and that the complainant is wholly ignorant of how the shortage occurred; that the respondents both knew all about it; and that their books would show, as between themselves; and discovery is prayed of the facts in the case touching the delivery of this cotton, so that the liability may be placed where it belongs. The uncertainty and confusion as to which one of the defendants is liable is averred by the bill to be directly chargeable to the respondents, as the result of their joint traffic arrangement, and the conduct of each under and in pursuance of the same. The bill charges further (in No. 11,119) that the compress company actually executed a receipt acknowledging its liability for the cotton in that suit embraced, provided only it should turn out, on the checking over of its books, that the compress had got the cotton during the season. This was a clear acknowledgment of the duty of the compress company to make the investigation, furnish the discovery, and settle, or not, accordingly. This is the only distinguishing difference between the allegations in the two bills. Both bills charge, in effect, that these respondents engaged in a battledoor and shuttlecock performance as to their liability; each claiming that the other was responsible, and each denying its own liability. There were demurrers to the original bills, which were sustained, and amended bills were filed, and the demurrers to these amended bills were overruled, and from this decree these appeals were prosecuted.

The jurisdiction of the chancery court is put, in these bills, upon the necessity for discovery, the embarrassed and inadequate nature of the remedy at law, and upon the further distinctive ground that these respondents, having, for their own mutual convenience, changed the ordinary rule as to delivery under the bills of lading calling for specific bales by marks and numbers, by having entered into the aforesaid traffic arrangement, have brought about a status, as between themselves and shippers of cotton, wherein there clearly exists, as between themselves, a privity which renders them liable to such shippers. Are the bills maintainable? Bank v. Phillips, 71 Miss. 51, 15 South. 29, is entirely inapplicable here. There was no privity whatever between the defendants in that case. That was a fishing

bill, pure and simple. George v. Solomon, 71 Miss. 168, 14 South. 531, is also inapplicable. In that case the defendants were not only not in privity, but stood in distinctly antagonistic relations to each other as to the liability involved. In Supervisors v. Alford, 65 Miss. 69, 3 South. 247, 7 Am. St. Rep. 637, Campbell, J., said: "Had the bill been so drawn as to show that the facts are unknown as to which set of sureties are liable, the jurisdiction of chancery would have been undoubted." Citing Gay v. Edwards, 30 Miss. 218; Tate v. Desota, 51 Miss. 588. That was a suit in equity to establish liability between two sets of sureties on an official bond of Alford as treasurer of Lauderdale county. There was no privity between those two sets of sureties, and this is a stronger case than that in that respect. In other words, that case rested simply upon the confusion as to which set of sureties could be held liable, and the necessity for an accounting to so ascertain; and what the court held was that those two facts would give jurisdiction, but that the bill in that case not having averred ignorance as to which set of sureties was liable, but, on the contrary, expressly showing where the liability ought to have been placed, jurisdiction on those particular grounds was not shown in that case. In these cases the bills not only aver this very want of knowledge as to which of these two defendants is liable, and not only pray for a discovery to be made by them of the facts peculiarly within their knowledge, which would disclose which was liable, but they aver a state of facts from which it is clear that these defendants are not to be charged as occupying a distinct and independent attitude towards each other, but as strictly in privity one with the other, so far as the delivery of this cotton is concerned, as to the liability to complainant. The bills present a clearer and stronger case for the interposition of equity than was the Alford Case or the case of Gay v. Edwards, supra. In State v. Brown, 58 Miss. 840, the court quoted this expression from the case of Gay v. Edwards with approval: "There might have been circumstances under which Wynne alone might not have been liable for the money placed in the hands of Gay, and Gay was certainly not liable for more than he received. It was necessary for the complainant to go into equity for a discovery of the amount of the fund due from Wynne, and for an account and distribution." And the court well observed: "It is not true that equity has no jurisdiction of a cause because there is a remedy at law. If the remedy is inadequate to afford full and effectual relief, equity will afford relief, though the complainant might have sued at law." In Tate v. Desota, 51 Miss. 588, this court said: "When several parties are interested in the account to be taken, to prevent a multiplicity of suits, resort may be had to a court of equity. 1 Story, Eq. c. 8, § 446 et seq."

We uphold the right to equitable relief in these cases upon these grounds: First and specially. That the allegations of these bills make a case of clear privity between these defendants. They are not to be treated and dealt with separately and independently of each other, but they are to respond from the basis of privity which they have established for themselves by their joint traffic arrangement. If they chose to change the original rule as to place and mode of delivery of specific bales by marks and numbers, so that the railroad company could not deliver cotton at all to the holder of the bill of lading, but only to the compress company, receiving from the compress company and delivering to the holder of the bill of lading compress tickets calling, not for the specific bales called for by the bill of lading, but for an equal number of bales of average weight and quality, and to do all this simply for their own mutual convenience and profit, they have established thereby, as between themselves, a privity which they will not be allowed to repudiate when called on by holders of bills of lading to respond. Second. The equitable right to discovery is another ground for the jurisdiction, especially in view of the fact that the whole confusion and uncertainty as to liability was brought about by the joint action of these defendants. Third. If there was a remedy at law, it is clearly an embarrassed and inadequate one.

Wherefore the decrees in both cases are affirmed, and the causes remanded, with leave to answer within 60 days after the filing of the mandate in the court below.

(84 Miss. 319)

ALLEN v. ALLIANCE TRUST CO., Limited, et al.

(Supreme Court of Mississippi. Dec. 7, 1903.) DEEDS OF TRUST-POWERS-SUBSTITUTED TRUSTEE-SALE-VALIDITY.

1. A deed of trust provided that in case of the refusal or neglect of the trustee to act the beneficiary or any holder of the notes secured, "or their legal representatives," might appoint another trustee. Held, that the attorney in fact of the beneficiary had no right to appoint a substituted trustee, so that a sale by a trustee appointed by him was void.

Appeal from Chancery Court, Washington County; C. C. Moody, Chancellor.

"To be officially reported."

Action by B. R. Allen against the Alliance Trust Company and others. From a judgment in favor of defendants, complainant appeals. Affirmed.

In 1891 Joseph Wilczinski owned a large plantation in Washington county, Miss. He borrowed some money from the Alliance Trust Company, Limited, a corporation, and to secure it he and his wife executed a deed of trust in the usual form upon said planta

1. See Mortgages, vol. 35, Cent. Dig. § 1041.

tion, in which C. C. Currier was made the trustee, and he was described therein as the party of the second part. The Alliance Trust Company, Limited, is described therein as the party of the third part. The deed of trust conferred upon the trustees the power to advertise and sell said plantation in case default was made in the payment of borrowed money, and also conferred the power to substitute a trustee in the following form, which is fully set out in the opinion of the court. In August, 1897, C. C. Currier died, and at his death H. C. Williamson was appointed trustee in his place by A. S. Caldwell, attorney in fact of the Alliance Trust Company, Limited, under a power of attorney given by it to him several months before the deed of trust was executed. H. C. Williamson advertised and sold said plantation under said deed of trust, and it was purchased by James Hagget and William McMaster for the benefit of the Alliance Trust Company, Limited, and by mesne conveyances the title thus acquired by them became vested in appellant, B. R. Allen. Jos. Wilczinski died before the sale, and left a last will and testament, whereby he devised said plantation to his three sons. This was a bill filed in the chancery court of Washington county by B. R. Allen against the devisees of Joseph Wilczinski to cancel their titles as a cloud upon his title and tracing his back to and basing it on the sale made by Williamson as substituted trustee, and alleging that the Wilczinski heirs were claiming that said sale under said deed of trust was void. The prayer of the bill was, first, to cancel the titles of the Wilczinski heirs, and to confirm appellant's title, or, failing in that, second, to be subrogated to the rights of the Alliance Trust Company, Limited, and to charge said plantation with the amount due and unpaid upon said deed of trust. The defendants demurred to so much of the bill as sought to cancel their title and to confirm complainant's title, and by leave of the court answered the other parts of the bill. The grounds of the demurrer are that the appointment of the substituted trustee by A. S. Caldwell as attorney in fact of the Alliance Trust Company, Limited, was void as being an unauthorized delegation of power conferred by said deed of trust, and consequently that the sale by said substituted trustee was void; that the power conferred by the deed of trust upon the Alliance Trust Company, Limited, to substitute a trustee in place of the one named was revoked by the death of Jos. Wilczinski, and that the sale was for that reason void. The court sustained the demurrer, and complainant appeals.

Jayne & Watson, Harris & Powell, and Edw. Mayes, for appellant. Percy & Campbell, for appellees.

CALHOON, J. The very able brief of learned counsel for appellant states the rule

as to the meaning of the phrase "legal representatives" as we understand the best modern authorities to define it. The phrase has no hard and fast meaning. It usually means executors or adminstraitors, but it cannot, of course, mean executors and administrators only, in whatever instrument it may appear, and with reference to all the different subject-matters treated of in the multitude of varying instruments, and no matter what the plain purpose of the maker of the instrument using the phrase may be in using it. The court construing the meaning of the phrase arising upon the face of a particular instrument having reference to a particular subjectmatter must seek to find the purpose of the party using it in using it as he does. "The what and where, with whom, and when and why" of the use of a phrase in any particular case must all be considered, to reach a proper conclusion as to what the phrase may mean just in that case. So the authorities clearly demonstrate that it may, in various circumstances, mean executors, administrators, heirs, legatees, assignees, and devisees, even while legatees or devisees are strangers; in short it may mean any person or corporation taking the beneficial interest in property, real or personal. One is not usually within the definition of "legal representative," however it may be as to the phrase "personal representative," unless he represents the other in beneficial ownership. The words of the power to be construed in this case are as follows: "In case of the refusal, neglect, or incompetency to act of said trustee, or his absence from the state or his decease, then said party of the third part, or any holder of said note or notes, or their legal representatives, can, at any time they may desire, appoint a trustee in the place of the said party of the second part, or any succeeding trustee, whose acts done in the premises shall be of the same validity as if done by the trustee hereinbefore named." The power to appoint a substituted trustee is vested in three classes of persons: First, in the beneficiary company, the corporation itself; second, in any holder of the note or notes secured; third, "their legal representatives." There is not, on any fair construction of these words, any delegation of power to the trustee in the deed to appoint a substituted trustee in this deed of trust, nor are there any words which authorize the trustee in this instrument to delegate any personal confidence or trust, or discretion in or selection of a substituted trustee to any attorney in fact or agent of the corporation. Undoubtedly, a power of this kind may be so drawn as to delegate the personal confidence or trust or discretion to appoint a substituted trustee to the first trustee. If parties choose, they can so empower the first trustee to delegate the personal confidence or trust, but the difficulty here is that no such authority is given the first trustee. Who may appoint, in

the exercise of this power, the substituted trustee? The corporation itself may do so, acting in making such an appointment through its directors. The trustee in this instrument is not the corporation, nor is the attorney in fact, the firm of Caldwell & Smith. Any holder of the notes may also appoint. The crucial question in the construction of the clause having the power is, who are meant by the phrase "their legal representatives"? We think they mean the legal representatives, or the holders of the notes. This appears to us clearly to be so from several considerations: First, the collocation of the words indicated. Second, the use of the plural pronoun "their" so indicates. Third, and chiefly, the phrase "legal representatives," as applied to the holders of the notes, would seem, in this connection, their executors or administrators, and this use of the phrase is perfectly proper as applied to natural persons, and wholly improper as applied to corporations, in this sense, since they nevdie and never have any legal representatives. It is well observed, too, by learned counsel for appellees, that not to so hold, but to hold that the agent or attorney in fact of the corporation satisfies the phrase "legal representatives," would be assigning to the very same phrase in the very same sentence the meaning of executors or administrators as applied to natural persons, and of agent, in its broadest sense, as applied to corporations. Manifestly, whatever "legal representatives" meant in this sentence, it meant the same thing for the corporation and natural person. Fourth, as we have said in the outset, any person or corporation which takes beneficially from another persons or corporation may, if the particular instrument and the particular subject-matter show that plainly to be the purpose in using the phrase, satisfy the meaning of this phrase "legal representatives," and in that view the assignee of a corporation may be the legal representative in a proper case. So those appointed by statute or otherwise to wind up the business of an insolvent or dissolved corporation may be its legal representatives, but it is perfectly manifest that the agent and attorney in fact, Caldwell & Smith, in this case, took no beneficial interest whatever in this property. They had no duty to perform in respect to the matter of a sale, except to make the sale, execute the conveyance, etc. The particular power which they exercised here was the power to appoint a substituted trustee, and this power could be exercised alone, under the terms of this instrument, by the corporation itself, or some assignee taking a beneficial interest in the property. We are therefore of the opinion that this case may properly be decided by a mere construction of the terms of this power; and in construing them we hold that the agent and attorney in fact, Caldwell & Smith, had no power to make this sale, and hence it was absolutely void. It is

useless to refer to authorities showing that the rule of construction as to powers is strictissimi juris. This court has gone farther, perhaps, than any court in the Union in upholding that doctrine.

We wish to say a cautionary word. We are not to be understood as holding now that one can repose a personal confidence or trust in a corporation. The doctrine of delectus persona, which vitalizes this whole doctrine of special confidence and trust, properly enough applies to the selection of a natural person in whose integrity and confidence the donor of a power may confide, because he knows the donee to be of such honor as to specially fit him for the trust. But a corporation, conceived of as an abstract legal entity, it might be argued, is not such a donee of a power as can have trust reposed in it because of confidence in its personal honor. And it might further be said that its directors, at the time of the vesting of the power under the instrument, may be regarded as constituting, within the scope of the delectus personæ doctrine, the personality of the corporation, yet they may be wholly changed every year or otherwise, and so, if person or personality, if that term better pleases, in whom, in this view, the confidence would have been reposed, being gone, the corporation could not exercise the power which manifestly the grantor had intended it to exercise. And it may further still be said that, when reference is had to the nature of this delectus personæ doctrine, this doctrine of reposing confidence and trust because of known integrity on the one hand, and, on the other, to the nature and legal constitution of a corporation, it ought to be manifest that the doctrine can have no proper application to a corporation, but that a court should always hold on this point-construing this sort of power vested in a corporation by this sort of instrument-that the grantor did not give the power to the corporation under the influence of the delectus personæ doctrine, but that power so to appoint was purchased by the corporation as a part of the consideration named in the instrument, to be irrevocably exercised by it. We repeat, we are not to be understood as announcing any holding on either of these propositions, because decision here only requires a proper construction of the terms in which the power has been couched.

Of course, the appellant must do equity if he seeks equity, and, just as certainly he would be estopped to set up any statute of limitation against the enforcement of the claim, and the appellee has nothing still to do except to enforce its security in the proper way. But this sale is absolutely void, and no title passed under it; and this seems to be the only point which the court below adjudged. At all events, it is the only point which we adjudge, and on this proposition the decree is affirmed.

It will be noted that we have not cited an

Succession of DAUPHIN. CHOPPIN et al. v. DAUPHIN. (Supreme Court of Louisiana. Jan. 18, 1904.) LIMITATIONS JUDGMENT- SETTING ASIDEFRAUD-DISCOVERY-DESCENT AND DISTRIBUTION-RECOVERY OF INTERESTS-PLEADING

AMENDMENT-INTERVENTION.

1. The action to annul a judgment for fraud is prescribed by one year, dating from the discovery of the fraud, and the burden of proof is on the plaintiff in nullity to show when the discovery was made. If the evidence leave this date in doubt, the prescription will be maintained, especially where the information as to the alleged fraud was communicated to the plaintiffs by letter, and the letter is not produced nor its nonproduction accounted for.

2. A mere general statement that the discovery was made within the year will not suffice, particularly where, from the circumstances of the case, the probability is strong that it was made sooner.

3. Where by judgment a succession has been closed, and the executrix discharged and sent into possession as universal legatee, and 10 years afterwards the heirs of the first wife of the deceased bring suit against this universal legatee, and allege that certain property, of which one-half belonged to the first community, was fraudulently abstracted by her from the succession, and is now in her possession, and pray judgment directly in their own favor for their half of this property, thereby seeking relief outside of the succession proceedings, and on the theory that the ownership of the property in question can be litigated directly between themselves and the defendant individually, and the case is tried on the issue as to whether the property in question belonged or not to the first community, the plaintiffs cannot, after the evidence has been closed and the case fixed for argument, file a supplemental petition asking that the judgment closing the succession and discharging the executrix and sending her into possession be annulled, and the succession be reopened, and the defendant be destituted as executrix, and a dative testamentary executor be appointed, and the defendant be condenmed to account to this executor for the property in question. Such supplemental petition would alter the substance of the demand contained in the original petition. It would be the ingrafting of a new suit upon the pending suit.

4. Nor can this new suit be thus ingrafted upon this pending suit by means of an intervention on the part of the alleged heirs of the forced heir of the deceased. Such intervention would be further objectionable in that for its trial the case would have to be reopened and further evidence taken, and thus the trial of the main suit be retarded.

Breaux, J., dissenting.
(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.

In the matter of the succession of Maximilien A. Dauphin. Action by Sherburne G. Choppin and others against Rosa L. Dauphin, *Rehearing denied April 11, 1904.

1. See Judgment, vol. 80, Cent. Dig. §§ 864, 366.