Allen v. Hughes

• Decision Date: 16 March 1899
• Citation: 32 S.E. 927,106 Ga. 775
• Parties: ALLEN et al. v. HUGHES et al.
• Court: Georgia Supreme Court

32 S.E. 927

106 Ga. 775

ALLEN et al. v. HUGHES et al.

Supreme Court of Georgia

March 16, 1899

Syllabus by the Court.

1. A deed executed in 1858, conveying certain described property to C. in trust for the sole and separate use of M. G. H., the grantor's wife, for and during her natural life, and at her death to her children, the issue of the existing marriage between her and the grantor,--said children to share equally in the same,--vested in the trustee named the title to the life estate only, and not to the estate in remainder.

2. Such a deed is in proper custody when held by the wife, and the fact that after the death of the grantor the instrument was found in a trunk which contained papers, both of the grantor and the life tenant, does not rebut the presumption of delivery raised by the due record of the instrument.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Suit by J. H. Hughes and others against Oliver Allen and others. Judgment for plaintiffs. Defendants bring error. Affirmed.

Candler & Thomson and E. M. & G. F. Mitchell, for plaintiffs in error.

Goodwin & Westmoreland and Hamilton Douglas, for defendants in error.

LITTLE J.

Suit was brought in the court below to recover the possession of a certain lot of land in the city of Atlanta. The title set out by plaintiffs was based on a deed made by Hughes, their father, to Hayden Coe, trustee, on September 8, 1858. The preamble to the deed of conveyance is as follows "Whereas, the said Peter A. Hughes has recently become possessed of some money which his said wife inherited from her uncle, the late Caswell Mimms, of Charleston district South Carolina, deceased, and said money having been invested in the real and personal property hereinafter described, by the said Peter A. Hughes, and he being desirous of making provision for his said wife, Mary Grace, and the children which she now has, or may hereafter have, as the issue of the present marriage, against future contingencies and misfortune, and for their support and maintenance; and whereas, the said Peter A. Hughes is desirous of securing the said real and personal property hereinafter described to the said Mary Grace, wife of the said Peter A. Hughes, that she may enjoy the same during her natural life, together with the rents, issues, and profits arising therefrom,--at her death, to the children, born and to be born, of the present marriage, in remainder, share and share alike." Then follow the words of the conveyance: "Now, for and in consideration of the natural love and affection which the said Peter A. Hughes has for his said wife, Mary Grace, and her children aforesaid, as well as the premises considered. *** bath granted, bargained, and sold, and doth by these presents grant, bargain, sell, and deliver, unto *** Hayden Coe, in trust for the sole and separate use of the said Mary Grace Hughes, wife of the said Peter A. Hughes, for and during her natural life, and at her death to her children, the issue of the present marriage,--said children to share equally in the same,--the following described real estate," etc. (describing it). The habendum clause in said instrument is in the following language: "To have and to hold *** to the said Hayden Coe in trust for the said Mary Grace Hughes for life, to her sole and separate use, and to her children, issue of the present marriage, born and to be born, in remainder,--to their own proper use, benefit, and behoof forever, in fee simple," etc. It was alleged and proven that the plaintiffs T. H. Hughes and Fanny C. H. Wilson were the children of Peter A. and Mary Grace Hughes; that their sister, Mrs. Emma M. H. Jackson, who was one of the original plaintiffs, died since the suit had been instituted, and that H. H. Jackson, the administrator of her estate, was made a party plaintiff; that Mrs. Williams is deceased; that she left H. J. Williams as her sole heir at law, and that he, before the institution of this suit, conveyed all his interest in the property to the plaintiffs; that Hayden Coe, the trustee, died in 1862; that Peter A. Hughes died in 1893; that Mary Grace Hughes, the life tenant, died on the 14th day of April, 1896. The petition was filed the 15th day of August, 1896. On the trial the plaintiffs introduced a deed from Paden to Ivy, dated January 1, 1839, and successive conveyances in regular order to Peter A. Hughes, prior to the execution of the deed from Hughes to Coe, trustee, and proved Hughes to have been in possession of the property under the title so conveyed. The conveyance to the trustee was duly recorded. There was also introduced in evidence a deed from H. J. Williams to the plaintiffs, bearing date May 18, 1896, recorded June 26, 1896, conveying all the interest and title of Williams in the property to the plaintiffs. The defendants, answering the petition, denied the right of plaintiffs to recover, denied their title, and averred that they, and those under whom they claim title, had been in the public, continuous, exclusive, uninterrupted, and peaceable possession of the land sued for, under a claim of right, for more than 20 years. They also introduced deeds made by Peter A. Hughes and Mary Grace Hughes to E. R. Sasseen, bearing dates, respectively, July 13, 1863, and July 25, 1863, duly recorded, conveying the property in dispute; also, deeds from Sasseen to Jones, from Jones to Orme, from Orme to Grant, from Grant to Mercer, and from Mercer to Badger, purporting to convey the property in dispute, each for a valuable consideration, duly recorded, and forming successive links in a chain of title from Peter A. Hughes and Mary Grace Hughes to Badger, the lessor of the defendant Allen. It was shown, also, in behalf of the defendants, that Badger died on December 20, 1890, being represented in this suit by John S. Candler, administrator, one of the defendants; that Badger went into the possession of the property some 27 years before the trial, under the deed from Mercer, and had been continuously in the peaceable possession of the same from the date of his entry, and had made valuable improvements on the land. There was also evidence concerning the delivery of the trust deed, and the defendants insisted that no title ever passed to the grantees, because of the nondelivery of that deed. The evidence pertaining to that issue will be hereafter considered. At the conclusion of the evidence and argument the court directed a verdict in favor of the plaintiffs for the land sued for, and judgment was rendered accordingly. The defendants moved for a new trial; alleging, in substance, that the verdict was contrary to evidence and to the law, and because no title was shown to be in the plaintiffs, but that the evidence showed title by prescription to have been in defendants, and because the court directed a verdict. The motion for new trial was overruled, and the defendants excepted. These propositions will be considered in their order.

1. It will be seen, by reference to the paper title, that both plaintiffs and defendants claim from a common source. When the plaintiffs exhibited a conveyance from Peter A. Hughes to Coe, and proved, as they did, that Hughes was in possession at the time of the execution of the deed, title in the grantees was sufficiently shown to authorize a recovery, in the absence of proof of outstanding title paramount. The original paper title on which the defendants relied was the deed from Hughes and his wife to Sasseen, bearing date subsequent to the deed from Hughes to Coe, trustee, and successive conveyances ending in the conveyance to Badger. Therefore, regarding the mere paper title alone, the plaintiffs were entitled to recover. Hughes having parted with his title to the land under the deed to Coe, trustee, in 1858, the defendants could only have such interest in the land as Hughes and his wife conveyed to Sasseen, their predecessor in title, in 1863. It is not disputed that, if the trust deed was legally delivered, it vested in Coe, as trustee of Mary Grace Hughes, a life estate in the property described by the deed. This deed, having been executed prior to the passage of the married woman's act of 1866, was at a time when a feme covert could properly be made the beneficiary of a trust. So that, in all events, Mrs. Hughes took a life estate in the property, under that deed, through the medium of her trustee. The possession of Hughes and his wife after the execution of the deed was entirely consistent with its terms, inasmuch as the purpose expressed in the trust deed was to secure to the wife the rents, issues, and profits thereof; and, while the legal title was in the trustee, she, as the sole beneficiary (for her life), was entitled to the benefits of the property, and the personal use of the same. It appears that the trustee died prior to the execution of the deed by Hughes and his wife to Sasseen. So that at the time of the execution of that deed, for aught that appears in the record, Mrs. Hughes had no trustee; and, being the equitable owner and sole beneficiary of the life interest, it cannot be said that nothing passed by her deed to Sasseen. On the contrary, even if such deed did not convey full legal title to her life estate, it certainly did convey colorable title, which would stand until set aside, if no more. Kile v. Fleming, 78 Ga. 1. The trust created, so far as Mrs. Hughes was concerned, became executed by the act of 1866. Then the legal title to a life estate vested in Mrs. Hughes, and she had the absolute right to convey it. Even if the deed to Sasseen was executed at a time when she did not have the legal right to convey her life estate, yet, when she afterwards became invested with such right, and permitted the conveyance to stand, without any attempt to qualify or set it aside, it...