[Girard et al. v. Futterer et al.] mination, to pay a greater sum than the two thousand dollars which she sent to them. In the amended bill it is averred that Mrs. Spuller, on July 4, 1866, wrote complainants as follows: "I am, therefore, now glad to be able to say that I have the full sum of four thousand dollars ready, whenever any one duly authorized appears to demand it." This is the exact amount of the four pecuniary legacies to complainants, for the recovery of the unpaid half of which the present suit was brought. The original bill in this case was filed February 26, 1887. By Stephen Spuller's will the pecuniary legacies were given to complainants with a proviso "that they shall not be payable in case that by reason of the existing war, or other circumstances, my said wife Julia Spuller shall not deem it discreet to pay the same, in view of the wants and requirements of herself and family; hereby intending to make the payment of said legacies, or any part thereof, as well as the time of payment of the same, entirely subject to the sound discretion of my said wife." The will appointed Mrs. Julia Spuller executrix, and the testator died in 1864. The will was probated, and Mrs. Spuller took upon herself the execution of the trust. The object of the present bill is to force the collection of the residue of the legacies out of lands that were of the estate of Stephen Spuller at his death. The defendants claim and hold under the will of Mrs. Spuller. Treating, as we must on demurrer, the averments of the bill as true, the complainants make the following case: On July 4, 1866, Mrs. Spuller, executrix, admitting she had the requisite funds in hand, in the exercise of her discretion, elected to pay the pecuniary legacies in full, and so notified the legatees. That money became thenceforth a fund in her hands as trustee, held by her as an express trust. On March 3, 1867, she recognized the continued existence of the trust, and made partial payment on it. The present suit was instituted in less than twenty years after that time, and no presumption of payment had arisen when this suit was brought. Austin v. Jordan, 35 Ala. 642; Phillippi v. Phillippi, 61 Ala. 41; Harrison v. Heflin, 54 Ala. 552; Greenlee v. Greenlee, 62 Ala. 330; 3 Brick. Dig. 619, § 26; Kennedy v. Winn, 80 Ala. 165; Cameron v. Cameron, 82 Ala. 392; Whetstone v. Whetstone, 75 Ala. 495; Philippi v. Philippi, 115 U. S. 151; Solomon v. Solomon, 83 Ala. 394. The claim, as shown by the averments of the bill, is not barred. [May et al. v. Coleman, Trustee.] May et al. v. Coleman, Trustee. Bill in Equity to enforce a Trust. 1. Compromise of pending suit.-When a pending suit in equity is compromised, a supplemental answer, in the nature of a plea puis darrein continuance at law, is the proper mode of bringing the compromise to the attention of the court; and such supplemental answer should be allowed, unless sufficient reasons are shown against its allowance. 2. Testamentary trust; limitation of suit by legatee against trustee's distributee. When a pecuniary legacy is bequeathed to an executor in trust for the legatee, and he pays the interest annually during his life, a bill in equity to enforce the trust against his sole heir and distributee, who has taken possession of all his property, is barred by the lapse of six years from the last payment of interest. APPEAL from Hale Chancery Court. The bill was filed in November, 1882, by appellee as trustee of S. A. Connor, and alleged that one Rachel Wedgeworth, by will, bequeathed to said Connor two hundred dollars, which legacy was placed by the terms of the will in the hands of one Stephen Wedgeworth as trustee; that during life and up to his death said Stephen Wedgeworth discharged his duties as such trustee; that said Stephen "being possessed of property consisting of land, mules, cattle and other things," died, leaving an only surviving child, Ann E. (who afterwards married John May), "who took possession of and administered upon the estate of her father, collecting all the assets and paying all the debts of said estate, except the legacy due the said S. A. Connor." The bill further alleges that the said Ann E. "took possession of all the property of her father and of her own wrong, also took possession of the trust fund belonging to the said S. A. Connor, of which her father was trustee, and became herself the trustee of said fund, paying annually the annuity due the said S. A. Connor for a series of years;" that in 1877 the said Ann refused to make any settlement of her trusteeship, and had, up to the time of the filing of the bill, failed so to do, though she had frequently promised to pay the annuity and the trust fund, &c. [May et al. v. Coleman, Trustee.] COLEMAN & COLEMAN, E. W. DEGRAFFENREID, and THOS. R. ROULHAC, for appellants. JAS. E. WEBB, contra. CLOPTON, J.-Three years after the bill and answer thereto were filed, the defendants applied to the court to file a supplemental answer, in which they alleged, that the matter of litigation had been compromised by the payment to the solicitors of complainant of one-half of the amount claimed, with the accrued interest, and to the register of the court of one-half of the costs of the suit, and that it was understood and agreed, that on such payments being made the cause was settled and the bill should be dismissed. The chancellor refused the application on the objection of the complainant. Neither the grounds of the objection, nor the reasons of the chancellor are disclosed by the record, nor are any presented by the counsel in argument. Evidently the parties had the right to compromise the suit, and such compromises of litigation are favored by the law. When a pending suit is compromised, unless it is brought to the attention of the court before a final decree, the parties will be concluded and estopped from setting up the compromise thereafter. A supplemental answer in the nature of a plea puis darrein continuance at law, is the proper mode to bring the compromise and settlement before the court, on which to try the issue thus presented. There may have been sufficient reasons for refusing the application, but if so, they are not made known by the record, and we must determine the matter as presented before us. The chancellor should have allowed the defendants an opportunity to set up the compromise and settlement against the further maintenance of the suit, and should have tried the issue, and determined whether the compromise was such on the part of the trustee, as the court would approve, before hearing the case on the merits. As the decree must be reversed for this reason, we will not consider the merits of the controversy, except to remark that the allegations of the bill are insufficient to show that the trust fund was received by the defendant, Ann May, or that she became trustee, or that the property belonging to the estate of Stephen Wedgworth was charged with the trust. The bill fails to show, that any liability was imposed on the defendants, other than was imposed by any [Shelby et al. v. Tardy, and Tardy v. Shelby et al.] other debt, which Stephen Wedgworth owed at the time of his death. If six years elapsed since the last payment by the defendants, or either of them, before the commencement of the suit, the claim is barred by the statute of limitations.-Cameron v. Cameron, 82 Ala. 393; Lee v. Downey, 68 Ala. 98. Reversed and remanded. Shelby et al. v. Tardy, and Tardy v. Bill in Equity to declare Resulting Trust and to Remove 1. Partial relief to complainant.-To entitle the complainant to a decree, the material averments of the bill must be proved substantially as alleged; but he may have partial relief, when he proves only a part of his claim, unless the failure to prove it all makes a material variance; and this relief may, in ordinary cases, be granted under the general prayer. 2. Resulting trust in favor of wife, in lands purchased by husband.—A resulting trust in favor of the wife, in lands purchased by the husband in his own name, may be declared and established in equity, on proof that she furnished the purchase-money, or the part which was in cash; but, as to the second installment in this case, the testimony of the wife and her witnesses, closely related to each other, is not sufficient to establish her ownership of the money, as against a subsequent purchaser from the husband, under the rule declared in the cases cited. 3. Parol trust in lands.-A trust in favor of the wife, in lands purchased by the husband in his own name, cannot be established by oral evidence as to his intention to hold the title in trust for her. 4. Delivery of deed to grantee, or to his attorney.-As a general rule, a deed can not be delivered conditionally, to be held as an escrow, either to the grantee, or to his attorney; but this rule does not apply where the deed is incomplete on its face--as where it is signed by the husband only, and shows on its face that it was also to be signed by the wife. 5. Cancellation of deed as cloud on title.-When the wife files a bill to establish a resulting trust in lands purchased by the husband in his own name, and subsequently sold and conveyed to a third person, and only proves her ownership of the first installment of purchase-money paid in cash; though she is entitled to relief to the extent of this payment and her claim is superior to the rights of the purchaser, she can not have the husband's conveyance to him cancelled as a cloud on her title. APPEAL from Madison Chancery Court. Heard before Hon. THOMAS COBBS. The bill was filed by Mrs. Annie S. Tardy against her husband Clarence Tardy and David D. Shelby, and sought 84 327 93 561 84 327 99 643 84 327 102 274 84 327 105 267 84 327 129 625 [Shelby et al. v. Tardy, and Tardy v. Shelby et al.] to have a resulting trust in her favor declared in certain lands bought by her husband, and to remove a cloud on the title thereof caused by a contract for the sale of said lands to said Shelby entered into by her husband and Shelby. R. W. WALKER and R. E. SPRAGGINS, for Shelby. STONE, C. J.-There is but one bill in this case-that of Annie S. Tardy against Shelby, and against complainant's husband, Clarence Tardy. The object and prayer of the bill are to have it declared that Clarence, the husband, acquired and held title to the lands in controversy in trust for complainant, his wife, either as a resulting or constructive trust, and to have Shelby's claim of title vacated and removed, as a cloud on the said Annie's title. She alone is actor in this suit, she alone prays relief, and, as the pleadings stand, only such relief can be granted, as is necessary to secure to her the right she has shown herself entitled to. And even she can succeed, only to the extent that her averments are supported by admissions in pleadings, or by proofs.-Cullum v. Erwin, 4 Ala. 452; Gilman v. N. O. & Selma R. R. Co., 72 Ala. 566; Trimble v. Farris, 78 Ala. 260. But it is not necessary to a valid decree that the relief shall be co-extensive with the claim set up in the bill. If the proof sustain only a part of the claim asserted, and the proven part fall within the general purview of the averments, and there be no repugnancy between the case made by the proof and the allegations and prayer for relief, the complainant may have relief, if there be a prayer to which it can be referred. A general prayer for relief is sufficient in ordinary cases.-Shipman v. Furniss, 69 Ala. 555; Munford v. Pearce, 70 Ala. 452; Flor. Sew. Mach. Co. v. Zeigler, 58 Ala. 221. We concur with the chancellor in holding that the thousand dollars, first payment made on the land purchased from Mr. White, was made with money furnished by Mrs. Annie S. Tardy. The testimony satisfactorily establishes this. To this extent the chancellor granted her relief; and he expressed no ruling which, on the question of the land purchase, went beyond this single payment made with her money. The most severely controverted question arising out of the testimony in this record, is the inquiry, whose money |