¶1— The case has been very fully argued upon its merits, and can, without injury to either of the parties in interest, be determined finally without the expression of an opinion upon the regularity or propriety of the petition which was entertained in the Court of Chancery; or without deciding whether the order or decree of the chancellor is of the character which will support an appeal, or whether the remedy of the party aggrieved by it is mandamus for its vacation. If the latter is the appropriate remedy, an application for the writ is pending, and a dismissal of the appeal would result in the granting of the writ, as we are of opinion the order or decree is manifestly erroneous.
¶2We can see no ground, legal or equitable, upon which the decree of the chancellor can be supported. There was an absolute, unconditional sale of the goods to Dugan, accompanied by a delivery of possession.. The title vested in the purchaser, and from the .moment of delivery of possession the relation of buyer and seller was changed into that of debtor and creditor. This is true, even where there is a sale of goods for cash; if the seller, without demanding the purchase-money, not being induced by the fraud of the buyer, delivers the goods to him unconditionally, the title vests in the buyer, and he becomes the absolute owner. There was no lien upon the goods for the payment of the price; for we are not aware that a lien for the purchase-money of chattels, with the possession of which the vendor parts absolutely and unconditionally, has ever been implied or recognized. — 1 Lead. Cas. Eq. 502 * Jones v. Bird, 8 Leigh, 510; Beam v. Blanton, 3 Ired. Eq. 59; Lupin v. Marie, 6 Wendell, 77.
¶3The goods may have been wrongfully sold by the recéiver, and the proceeds of sale may have increased the funds in his hands, which are under the control, and subject to the disposition of the court. If this be true, the wrong was done to Dugan; his goods were converted into money, and he only, not a creditor for him, can elect to waive the tort and recover the money into which they have been converted. — Lewis v. Dubose, 29 Ala. 219.
¶4Take the other theory, upon which it seems to be supposed that the claim of the petitioner may be maintained — that Dugan was á trustee in invitum, and that there had been a ratification of his purchase of the goods. The trust estate could only be made liable to the creditor trusting him, to the extent that it was indebted to him upon a final settlement of his accounts as *243trustee. A trustee, express or implied, can not, in the absence of express power conferred'upon him, by his contracts or engagements impose a liability upon the trust estate. If he make a contract which is beneficial to the estate, the creditor, or person with whom he contracts, has no equity to charge the estate, unless he be insolvent, -which must be shown by the exhaustion of legal remedies against him, and the estate is indebted to him. In that event, a court of equity may subrogate the creditor to the right of the trustee to charge the trust estate. Jones v. Dawson, 19 Ala. 672; Mulhall v. Williams, 32 Ala. 489; Askew v. Myrick, 54 Ala. 30. That is not the case made by the petition.
¶5Let the decree of the chancellor be reversed, and a decree will be here rendered dismissing the petition, at the costs of the petitioner in this court; and he will pay the costs of the petition in the Court of Chancery, to be taxed by the register.