[Steele v. Sullivan.] lic highway. Washburn on Easements, 187; Scott v. State, 1 Sneed (Tenn.), 633. The mere fact that the owner of the fee, in conveying an adjoining tract of land by deed, describes it as being bounded by a road on one side, is not, alone, evidence of a public dedication of the road. Hoole v. Attorney General, 22 Åla. 190; Immigration Association v. Jones, supra. Of course, where streets or alleys are laid out, and lots are sold by the owner of the soil, with reference to the plan, and purchases made on the faith of the act, a dedication may be inferred, though, in all cases, the intention of the owner is open to explanation.-Washburn on Easements, 138; Logansport v. Dunn, 8 Ind. 378; Child v. Chappell, 9 N. Y. (5 Seld.) 246; Hall v. McLeod, 2 Metc. 98. Where a right of way, or other easement, is claimed by private persons, upon the principle of prescription, the user and enjoyment, as is universally held, must have been "adverse to the owner of the estate from which the easement is claimed, under a claim of right, exclusive, continuous, and uninterrupted," and with the actual or presumed knowledge of such owner.-2 Wait's Act. & Def. pp. 685, 693; Colvin v. Burnett, 17 Wend. (N. Y.) 564; Tracy v. Atherton, 36 Vt. 514. If the user is merely permissive, as existing by the toleration of the owner, and in subordination to or recognition of an implied license from him, the right will not mature into a title by prescription, but is revocable at pleasure.-Bachelder v. Wakefield, 8 Cush. 243; Watkins v. Peck, 13 N. H. 360; Polly v. McCall, 37 Ala. 29. The application of these principles proves fatal to the complainant's claim in this case. We fully concur in the opinion of the chancellor, that the evidence shows that the alley in controversy, described as lying between the store-houses of the appellee, Sullivan, and James I. Donegan, in the city of Huntsville, was never dedicated to the public use, but that it is the private property of the adjacent proprietors. And it is still clearer from the evidence, that the complainant, Steele, shows no right in himself, or those under whom he holds title, except a permissive right of way, in the nature of a mere license. The muniments of title held by Sullivan and Donegan, running back for over sixty years, rebut the idea of dedication, by repeated and continuous claims of private ownership in their vendors, and those under whom they claim. The same inference is corroborated by the contention between these adjacent proprietors, which was submitted to arbitration, and settled by an award declaring the respective rights of the parties. The alleged claim on the part of the city of Huntsville is entirely unsustained by the testimony, and appears to have been abandoned by the corporate authorities on investigation. [Dunham v. Milhous.] The decree of the chancellor dismissing the bill is in full harmony with the above principles which we have discussed, and, being supported by the evidence, is affirmed. Dunham v. Milhous. Bill in Equity for Foreclosure of Mortgage; Cross-Bill for Rescission of Contract. 1. What are personal assets in equity.-A debt for moneys loaned by an administrator, under powers conferred by the will of the decedent, secured by mortgage on real estate, is in equity regarded as personal assets, whether arising from the sale of property ordered to be sold, or from the invested products and profits of lands. 2. Administrator as testamentary trustee; contract in reference to trust property for benefit of his wife, in violation of trust.-An administrator with the will annexed, having married one of the testator's two daughters, and being charged by the will with the duty of investing and preserving trust funds, the income and profits of which were to be paid annually to the two daughters, to the exclusion of all right on the part of their respective husbands, with remainders to their children, and to the next of kin in default of children, can not enter into any valid contract, by which the title to lands, mortgaged to secure a debt due to the trust estate, can be purchased and held for the benefit of his wife, in violation of the terms of the trust. 3. Same; when guardian and ward will be held chargeable with notice of such violation of trust.-In such case, if it appears that the mortgage also secured another debt, due to an infant for money loaned by her guardian, which was also embraced in the decree of foreclosure; the decree being entered satisfied, pursuant to an agreement between the administrator and the guardian, though no money was in fact paid; a part of the debt due to the ward being settled as cash, the guardian charging himself with the amount, and taking a mortgage on the lands for the residue from the nominal purchaser, who held for the benefit of the administrator's wife; the guardian and ward being chargeable with notice of the breach of trust and misapplication of the trust funds, a court of equity will not, at the suit of the ward, enforce the mortgage given to secure the balance of her debt, to the detriment of the contingent remainder-men. 4. Same; extent of relief in such case.-The decree of foreclosure having been regularly made, the sale under it properly conducted, reported to the court, and confirmed; deeds executed under the order of the court, and the decree entered satisfied; and the mortgagor not having participated in the breach of trust committed by the administrator and the guardian, who were the legal representatives of the secured debts; although the lands will be held chargeable with the trust funds thus misapplied, at the election of the beneficiaries in remainder, the sale under the decree will not be set aside, nor the mortgagor's rights under it in any way disturbed. 5. Same; rights of remainder-men, and who may represent them.-The beneficiaries in remainder, in such case, “may elect to disclaim as to the lands, and hold the trustee and his sureties liable for the sum of the [Dunham v. Milhous.] assets thus converted and misapplied by him; and since the remaindermen can not now be known, and may not be in esse, the trustee [that is, the succeeding administrator] is the proper and only party to look after their interests, and to preserve the corpus of the fund, to be turned over to them when they are ascertained." 6. Same; estoppel against wife, and relief to ward.-As to the lifeestate of the administrator's wife in the original debt secured by the mortgage, the arrangement being made for her benefit, and she being cognizant of the breach of trust, she is estopped from setting it up, as against the infant, in avoidance of the mortgage given to secure the residue of her debt. 7. Protection accorded to trust estate in remainder, in absence of pleadings or parties.-The record in this case disclosing a breach of trust and misapplication of trust funds, by and between parties who are asserting adverse claims to the property, growing out of such breach of trust, while the property is chargeable, at the election of the beneficiaries in remainder, with the trust funds so misapplied, and they are not before the court, nor even known; the court will not exert its powers in such a service," until the trusts are properly cared for and secured. APPEAL from the Chancery Court of Dallas. Heard before the Hon. CHARLES TURNER. The original bill in this case was filed on the 2d January, 1878, by Mrs. Ann E. Milhous, the wife of James F. Milhous, against Mrs. Sallie Blackwell; and sought to foreclose a mortgage on a tract of land, which was described therein as "being the lands of George T. Davis, mortgaged to Robert S. Hatcher, guardian, J. W. Olds and others, and sold by the register in chancery under the decree in the cause of Stephen Croom, administrator of the estate of J. W. Olds, against Geo. T. Davis and others." The mortgage, a copy of which was set out in the bill, was dated March 22d, 1872, and was given to secure the payment of two promissory notes, each for $2,372.82, dated March 22d, 1872, and payable on the 1st January, 1872, and 1873, respectively; signed by Mrs. Blackwell, and payable to the complainant, who was then unmarried, and under twentyone years of age. The notes were made exhibits to the bill; and it was alleged that they were unpaid, that they accrued to the complainant before her marriage, and that they belonged to the corpus of her statutory estate. The circumstances under which this mortgage was executed are fully stated in the opinion of the court, and it is unnecessary to repeat them here. Mrs. Blackwell, in her answer to the bill, stated these facts; admitting the execution of the notes and mortgage, but denying that she had any real interest in the subject-matter of the suit; and she insisted that Mrs. Willie P. Dunham, as the administratrix de bonis non of the estate of W. P. Dunham, deceased, and Mrs. Texana Weeden, the wife of Henry V. Weeden, should be brought in, as the real parties in interest, and should be required to litigate with the complainant their respective rights in and to the lands conveyed by the mortgage, [Dunham v. Milhous.] growing out of the transactions in which the mortgage originated. In April, 1868, Mrs. Willie P. Dunham, as the administratrix de bonis non of the estate of said W. P. Dunham, deceased, filed her petition, asking to be made a party defendant to the bill, in order that she might file an answer and cross-bill, as necessary to protect the interests of her intestate's estate; and her petition being allowed, she filed an answer and crossbill, stating the facts connected with the transaction, of which the giving of said notes and mortgage formed a part; and insisting that the entire transaction, as arranged and consuminated between H. V. Weeden, who was then the administrator of said W. P. Dunham's estate, and the complainant's guardian, was a violation of trust and duty on the part of said Weeden, in which complainant and her guardian participated with full knowledge. The complainant in the original bill and Mrs. Blackwell were made defendants to the cross-bill, which prayed relief as follows: "That the said sale made on the 21st November, 1871 [the sale at which Mrs. Blackwell became or was declared the purchaser of the lands afterwards conveyed by the mortgage sought to be foreclosed], may be set aside as to the parties to this suit; that the deed and mortgage, and receipts of satisfaction of said decree, under which said sale was made, may, as to them, be annulled and held for naught; that an account may be taken of the amounts due oratrix on said decree and from said Aun E. Milhous for said $2,000 paid her as aforesaid; that said last-named amount may be declared and decreed a lien on said lands, and be first paid out of the proceeds of a re-sale thereof; that said lands be sold, and, after paying said $2,000 and interest, that the residue be applied, pro rata, to the payment of said two decrees originally in favor of said H. V. Weeden, as administrator of said Dunham, and of said F. L. Milhous as guardian of said Ann E. Millhous; or that the lands be sold to satisfy the lien of oratrix as above set forth." An amendment of the cross-bill was afterwards filed, alleg ing that Mrs. Willie P. Dunham, the complainant therein, in assigning to Mrs. Blackwell and J. D. Hill her interest in the two debts secured by the mortgages of Davis and S. M. Hill, acted under the compulsion of her husband, R. S. Philpot, from whom she afterwards obtained a divorce. On final hearing, on pleadings and proof, the chancellor dismissed the cross-bill, and rendered a decree foreclosing the mortgage, as prayed in the original bill. From this decree an appeal was sued out by Mrs. Blackwell, and by Mrs. W. P. Dunham as administratrix, and each here assigns errors; Mrs. Blackwell assigning the decree on the original bill; and Mrs. [Dunham v. Milhous.] Dunham, the decree dismissing her cross-bill, and the decree on the original bill. PETTUS, DAWSON & TILLMAN, and LAPSLEY & NELSON, for appellants. BROOKS & Roy, contra. STONE, J.-An effort is made in this case, by pleadings and proof, to show-first, that Mrs. Sallie Blackwell was induced by false representations and assurances to enter into the purchase of the Davis plantation, and that therefore she should not be bound by it; and, second, that Willie P. Dunham, complainant in the cross-bill, was coerced by duress on the part of her husband, Philpot, to convey her interest in the Hill debt and mortgage, and in the Davis debt and mortgage. Leaving out of view the sufficiency of the pleadings as to these matters of defense, we think the evidence fails to sustain either of them. We therefore dismiss these two subjects, without further comment. It results, that in the discussion of the questions raised by this record, we will treat Willie P. Dunham as having no interest in either the Hill or Davis debts, which, although secured by mortgages on lands, were, at the time of her transfers, only personal assets, as viewed by a court of equity. Counsel do not differ in the construction of William P. Dunham's will, the original source of title under which Mrs. Weeden and Mrs. [Philpot] Dunham claim, and derive all the title they ever held. Mrs. Sallie Blackwell, widow of Wm. P. Dunham, the testator, dissented from the provisions of the will made in her favor, and took the share of the estate secured to her by the statutes. She, therefore, had no interest in the property in controversy, derived from the will of her husband. The clauses of Mr. Dunham's will affecting the present suit are as follows: "It is further my will and desire, that my plantation be kept up, and my negroes kept together and worked thereon, with all necessary stock, implements and utensils for that purpose, until such time as my children become of age, or until a division may, from some other cause, become indispensable and necessary." He then directed, that the income and profits be divided into three parts; but the widow's dissent from the will made it necessary to divide them into only two parts, there being but two children. The will then makes the following provision for each of the daughters: "I further give and bequeath to my said executors or executor, administrator or administrators, and their successors in the trusts hereinafter created, one other third" [half of all that was left, after separating the widow's share] "part of my whole |