found cited in the notes on this subject in 8 American and English Encyclopedia of Law, second edition, on pages 738-743, and we content ourselves with reference to these notes without going into any prolonged discussion of the subject. In Patter son's Appeal, 96 Pa. St. 93, it was held that where judgment is entered on the same day, but after the death of defendant debtor, the legal fiction of relation of judgments does not apply, and it is not entitled 65 to priority of payment out of the proceeds of the sale of real estate over the claims of general creditors. The doctrine asserted in this case is directly in point and applicable to the case at bar. Our conclusion is that the decree in the present case, having been rendered after the death of Emma P. Cullen, who was a material defendant in the cause, was void, and the chancellor committed no error in setting aside the decree on motion. The petition for mandamus will be denied.

Fractions of a Day are usually not considered in the computation of time, though they may be if justice demands it. Thus, when it is necessary to ascertain the exact time of a death, fractions of a day may be computed: See the monographic note to State v. Michel, 78 Am. St. Rep. 382, 383.

Judgments Rendered After the Death of the defendant are considered in the monographic note to Watt v. Brookover, 29 Am. St. Rep. 816-819. Consult, also, Shea v. Shea, 154 Mo. 599, 77 Am. St. Rep. 779, 55 S. W. 869; Reynolds v. Nesbitt, 196 Pa. St. 636, 79 Am. St. Rep. 736, 46 Atl. 841.

GULF RED CEDAR LUMBER COMPANY v. O'NEAL. [131 Ala. 117, 30 South. 466.]

ALTERATION OF INSTRUMENTS.-Whenever a Deed has Been Fully Executed and Delivered, it passes the title to the grantee therein, which cannot thereafter at law be devested by a mere change in the deed itself, with or without the consent of the grantee. (p. 24.)

DEEDS-Execution and Delivery.-When a grantor, after duly signing and attesting a conveyance, files it in the probate office for record, it constitutes a sufficient delivery, completing the execution and delivery of the instrument. (p. 24.)

WHEN A TRUSTEE IS CLOTHED WITH POWER to Sell Real Estate, a sale by him is valid and conveys the legal title. (p. 25.)

POWERS.-It is not Necessary That an Intention to Execute a Power of Sale should expressly appear upon the face of the instrument. (p. 26.)

POWERS.-A Deed Made by the Donee of a Power, although it purports to dispose of only the individual property of the donee, constitutes a good execution of the power, if such is the intent, and it cannot operate in any other way. (p. 28.)

POWERS-Execution of, What is.-Where a grantor in a trust deed reserves the power to control, sell and convey any portion of the property, and who also has an undivided interest therein, a deed of a portion of such property, which makes no reference to the trust deed, but which is obviously intended to pass the entire interest in the property, is a good execution of the power, and does not merely dispose of the undivided interest of the grantor. (p. 29.)

POWER-Sale of Trees.-A Power Reserved in a Trust Deed to sell any portion of the property is properly executed by selling trees and timber without a sale of the land itself. (p. 30.)

TRUSTS-Equity-Parties. In a Suit to Enforce the Rights of Beneficiaries in a trust deed, the husband of a deceased beneficiary need not be joined individually as a party plaintiff, where he is joined as the administrator of his wife's estate, and also sues as the next friend of her son. (p. 31.)

TRUSTS-Parties.-In a Suit by Beneficiaries and Grantees Under a Trust Deed which reserves a power of sale in the grantor to enforce their rights against subsequent purchasers of the property, the administrator of the deceased grantor is not a necessary defendant. (p. 32.)

Bill in equity for an accounting and an injunction.

C. E. Hamilton and D. M. Powell, for the appellant.

J. M. Chilton, contra.

127 HARALSON, J. 1. The deed of Thomas C. Crenshaw to the complainants, of date 9th of April, 1873, purports to have been received by the judge of probate and recorded on the day of its date, and this fact is so averred in the bill. It contains the provision: "I hereby reserve to myself the right to control and manage the property hereinabove conveyed for the use and benefit of said named children, until the youngest child arrives at the age of twenty-one years."

128 It is averred that on June 1, 1873, without the consent of either of the complainants, the beneficiaries in said deed, the said Thomas C. Crenshaw, erased from said deed the words, "until the youngest child arrives at the age of twenty-one years," and the words, "during my life," were inserted by him in the place thereof, and he wrote at the bottom of his signature, which had been affixed on the 9th of April, 1873, the words and figures: "June 1, 1873. The words 'until the youngest child arrives at the age of twenty-one years,' were erased, and the words, 'during my life,' were inserted before delivery," which written words were signed by him and witnessed by W. H. Crenshaw.

The complainants aver that said deed had in fact been delivered before said change was made, to wit, when the same was recorded, and as they are advised, they allege that said Crenshaw had no power or authority to change said deed, or to devest or in any manner affect the estate which had vested in them by the previous execution and delivery of the same. But they further aver that if they are mistaken in this, then they aver that said deed, as changed as aforesaid, was executed by said Thomas C. Crenshaw, on said first day of June, 1873, and was thereupon, to wit, on said last-mentioned day, delivered by said Thomas C. Crenshaw, to the grantees therein named, in whose custody the same now is.

Whether the said change in the deed by the grantor to his children occurred before or after delivery it is manifest the change affects only the duration of the trust, and not the trust itself. It is well settled in this state, whatever may be the rule elsewhere, that whenever a deed has been fully executed and delivered, it passes the title to the grantee therein, which cannot thereafter at law be devested by a mere change in the deed itself, with or without the consent of the grantee; and that when, after due signature and attestation of a conveyance the grantor files it in the probate office for record, this constitutes a sufficient delivery, completing the execution and delivery of the instrument: Elston v. Comer, 108 Ala. 76, 19 South. 324; Woodstock Iron Co. v. Richardson, 94 Ala. 631, 10 South. 144; Sheffield etc. Coal Co. v. Neill, 129 87 Ala. 158, 6 South. 1; Walker v. Crews, 73 Ala. 412; Frisbie v. McCarty, 1 Stew. & P. 62.

If the alleged alteration in the deed was made after its delivery, then such alteration did not affect the conveyance, and the trust ceased when the grantor's youngest child became of age. If made before the delivery, then it was properly made, and the trust would continue during the life of the grantor. In either aspect, the deed is good, and in the averments of the bill, as to this matter, is found nothing upon which to predicate an objection to it as raised by demurrer.

2. The second error assigned which is insisted on is, that the court overruled the demurrer to the bill, on grounds 29 and 30, viz., that it plainly appears, that Thomas C. Crenshaw had the power and the right to make the said extension agreement and bind the complainants thereby, and that said Crenshaw had the right to make the contract with Joseph Steiner & Sons, and complainants are bound thereby.

The argument used by counsel, and the only one employed on their part is: "When the trustee is clothed with the power to sell real estate, or any part thereof, then the sale by him is' valid and conveys the legal title." There can be no dispute as to the correctness of the principle invoked, but at least, the question recurs whether or not Thomas C. Crenshaw had the power, reserved in his deed to his children, to sell the timber and trees on the land, disconnected with a sale of the land itself, and if so, did he by his conveyances to Steiner & Sons, and the extension of the latter agreement by his contract with the defendant company, legally convey the trees and timbers on said lands, disconnected with any conveyance of the lands themselves.

The deed of Thomas C. Crenshaw to his children, and the reservation of his power therein, to control and manage the property described, for the use and benefit of his said children named therein, until the youngest of them arrived at the age of twenty-one, and his right to sell and convey any portion of the same and reinvest the proceeds in other property for their use, is not referred to in either one of his said conveyances to the 130 Steiners or the defendant, and no reference is made therein to his reserved powers in the deed to his children. The conveyance to the Steiners is simply one by him joined in by his two children, Louisa and Lillian Crenshaw, conveying to the grantees "all the cedar timber and cedar trees, standing or growing or lying down or fallen," on the lands described; and the other, to the defendant company, was executed by him alone, in consideration of the sum of two hundred dollars, extending the privilege or right to said trees and timber, as attempted to be granted to said Steiners, for three years from the expiration of said Steiner contract or conveyance. Said Thomas C. Crenshaw, confessedly, had an undivided fifth interest in the property, which interest had been reconveyed to him by his son Edward. The bill shows he conveyed this one-fifth interest afterward to his daughter, Lillian Wagner, under her then name of Lillian Crenshaw, but in so doing he reserved the right to use, control and manage the same for his own use and benefit during his life, and to sell, convey or mortgage all or any portion of it. These latter conveyances from his son to him, and from him to his said daughter, Lillian, were executed after the said conveyance to the Steiners, but long before the one executed by him alone to the defendant company, in extension of the Steiner conveyance. It is shown that all the children of

said Thomas C. were of full age prior to the time of said extension agreement.

It is thus made to appear that in respect to his creditors and purchasers, the said Thomas C. Crenshaw had an undivided one-fifth interest in said lands-the trees and timbers on which he had the right to sell-in his own right, disconnected with his power to sell the remaining four-fifths interest, under the power reserved under his said deed to his five children.

As to the proper execution of the power reserved by said Thomas C. in his said deed, we have said that he made no reference to said deed in his sale of the timbers and trees to said Steiners, nor in the one to the defendant. On the proper execution of such a power, Mr. Devlin observes: "It is not absolutely necessary to the execution of a power that the deed should recite 131 or refer to it. But when the grantor in a deed has an estate which will pass without an execution of the power, and the deed is silent on the interest to be conveyed, the law will presume that he intended to convey the estate that he possessed and no more": 1 Devlin on Deeds, sec. 423. On the same subject, Chancellor Kent states that: "The general rule of construction, both as to deeds and wills, is, that if there be an interest and a power existing together in the same person, over the same subject, and an act be done, without a particular reference to the power, it will be applied to the interest, and not the power. If there be any legal interest on which the deed can attach, it will not execute a power. If an act will work two ways, the one by an interest and the other by a power, and the act be indifferent, the law will attribute it to the interest and not to the authority, for fictio cedit veritati": 4 Kent's Commentaries, 335.

We have indulged the foregoing extracts from Devlin and Kent, as placing the contention of the appellee-that there was no execution of the power reserved to himself in his deed to his children, when he executed the deed to the Steiners and the one in extension of it to defendant-on the strongest grounds on which the authorities place it. But the technical rule as thus stated, which at one time in many cases seems to have prevailed, has undergone modification, for the sake of sustaining and not defeating what may appear to be the intention of the grantor.

In McRae v. McDonald, 57 Ala. 423, this court said that it is not necessary that an intention to execute a power of sale should expressly appear upon the face of the instrument; but that it was sufficient if it appear by words, acts or deeds, clearly