American Mortg. Co. of Scotland v. Hill

• Decision Date: 17 July 1893
• Citation: 18 S.E. 425,92 Ga. 297
• Parties: AMERICAN MORTG. CO. OF SCOTLAND, Limited. v. HILL.
• Court: Georgia Supreme Court

18 S.E. 425

92 Ga. 297

AMERICAN MORTG. CO. OF SCOTLAND, Limited. v. HILL.

Supreme Court of Georgia

July 17, 1893

Syllabus by the Court.

1.The minutes of the superior court applicable to a suit determined more than 20 years ago being lost or destroyed, the presumption is, nothing to the contrary appearing, that a verdict which should have existed as the foundation of a judgment which has been preserved, and is now produced, did in fact exist, and was duly entered on the minutes, or that the judgment itself was entered on the minutes, if that was necessary to give it validity without a verdict, a sale of land having taken place by virtue of an execution based on the judgment, and this sale having been acquiesced in by the partied concerned for 15 or 20 years after it was made.In the present case, treating the title of the defendant in execution as derived through the sheriff's sale, the property should have been found subject.

2.The defendant in execution having, while in possession of the premises, conveyed the land in dispute to his creditor as security for the debt now sought to be collected, and having an estate for life in the land under the will of his mother which can be enjoyed by him or his assigns without interfering with the trust estate in remainder which the will creates in behalf of his wife and children, the court certainly erred in finding for the claimant, (the trustee) so far as the life estate was concerned.The finding should have been that the property was subject as to the life estate, but not subject as to the remainder, if the present case is to be controlled by the terms of the will, and not by the sheriff's sale under the judgment.

Error from superior court, Quitman county; J. H. Guerry, Judge.

Action by the American Mortgage Company of Scotland, Limited against W. M. Tennille.There was judgment for plaintiff, and execution thereof levied.To the property thus seized William A. Hill, trustee, interposed to claim.From a judgment for claimant, plaintiff brings error.Reversed.

Where defendant in execution has an estate for life in land sought to be subjected which can be enjoyed by him or his assigns without interfering with the trust estate in remainder for his wife and children, the court erred in finding for claimant, the trustee of the wife and children, so far as the life estate was concerned.

The following is the official report:

An execution against W. M. Tennille was levied on land which was claimed by W. A. Hill, as trustee for Mary J. Tennille et al.By agreement the case was submitted to the judge without a jury.He held the property not subject tot he execution, and afterwards denied a new trial, and the plaintiff excepted.

(1) Two of the assignments of error are upon the ruling of the court that an estate in remainder passed under the will of Lucinda M. Tennille, the mother of W. M. Tennille, to his wife and children, and that the land in dispute could not be subjected to the execution; and upon the allowance to the claimant to introduce in evidence, over plaintiff's objections, a certified copy of the will of Lucy M. Tennille, and the petition and order under which the claimant was appointed as trustee for Mary J. Tennille and others; the objections being that this evidence was illegal and irrelevant, it being apparent from the will that no estate passed thereunder to the wife and children of W. M. Tennille, but the title to the property in dispute passed to him; and that Hill had no right to be appointed trustee under the will, nor to hold or control the property as trustee.Before the introduction of the evidence objected to, the claimant introduced a marriage contract between W. A. Tennille and Lucinda M. Fort afterwards Tennille, dated October 10, 1842, and recorded January 6, 1843, wherein all her property is preserved as her separate estate, and an express permission is made authorizing her to dispose of all her property by will.It was admitted that she was the mother of W. M. Tennille, who was the only child of the marriage alluded to; that at the time of her death she was the owner of the land in dispute, which was included in the marriage settlement; and that she died on August 11, 1864, and her husband died on October 21, 1864.The will in question was dated February 13, 1863, and was admitted to probate on February 6, 1865.It directs that her executors shall keep up and cultivate her plantation with her slaves thereon for the purposes hereafter mentioned, but that, if the business shall become unprofitable for reasons to be judged of by the executors, they may sell and dispose of the whole of her estate, both real and personal, in such manner as they shall judge will best contribute to the interests of her estate, and invest the proceeds of sale in interest-bearing securities.

In the next item she gives $1,000 to the son of her brother, and further gives the same amount each to three named females, in trust for their sole and separate use and benefit during their lives, and at their deaths to be equally divided among their children, and, should they die without children, these legacies should go to their brothers and sisters.These legacies are directed to be paid from the property and income from the plantation, without interest, whenever the executors see proper and can conveniently spare the money.Under this item, an absolute estate of $500 each is given to one Armstrong and his brothers, to be paid in the same way.The next item gives to Tennille Patterson an unconditional legacy of $2,000.The next gives certain negroes to the children of her brother, and certain lands in Alabama then in his possession, with the direction that the lands and negroes be used and possessed by her brother and his wife during their lives as a home for themselves and children, the annual income and profits thereof to be applied to the support and education of their children and themselves during their lives, and at their deaths to be divided in equal shares between their children.The next item is in these words: "I give and bequeath to my beloved son, William Meigs Tennille, all the rest and reside of my estate, whatever character the same may be, to have and to hold to him, his heirs and assigns, forever, subject, however, to the following incumbrances, conditions and provisions, to wit: That my beloved husband shall have the control and management of my whole estate for and during his life, with the power and authority to plant and gather the crops and control the slaves and other property, sell and dispose of the crops, and receive the proceeds arising from the sale during his life, in trust for my said son, without accountability for the use of the same, so that no unnecessary waste shall be committed; nor shall the same be taken for any debts or liabilities against him at the date hereof.And I do hereby appoint him as my testamentary guardian of my said son during his minority, not doubting that my said beloved husband, from his age and experience, will manage and control said estate for the best interest of our said son before and after his majority, for and during the life of my said husband.And if my said son shall die before his said father, my said husband, he shall continue to manage may said estate in connection with my other executor, Francis A. Tennille, my husband's brother, who shall manage the same together in the same way and manner aforesaid, provided my said husband, from his age or debility, shall at any time require his said brother's assistance, taking and receiving to himself, however, the proceeds arising from my said estate for his support and in trust for my said son, and preserving the corpus of the property in case of his, my son's, death, for the benefit of the wife and children of my said son, if any he should have at his death, or, in default thereof, for the benefit of the bequest hereinafter made."The tenth time gives certain special money legacies, to be paid in the manner specified by the executors or the legal representative having the estate in charge, upon the contingency that the son of the testatrix should die without wife or child living at the time of his death, and after the death of the husband of testatrix; and in such contingency the residue of the estate is given to the next of kin of her son.The last item appoints her husband, W. A. Tennille, and his brother, Francis A. Tennille, as her executors, and W. A. Tennille as testamentary guardian and trustee of W. M. Tennille.The petition of Mary J. Tennille, which was joined in by her husband, W. M. Tennille, was filed in the superior court for the benefit of herself and their minor children, and of other minor children of W. M. Tennille by a former wife, for the appointment of a trustee to keep and preserve the trust estate created under the will of Lucinda M. Tennille, and in place of W. A. Tennille, the former trustee, deceased.On this petition W. A. Hill was appointed trustee for such purpose.The filing of the petition and the order of appointment were of the same date, February 11, 1890.It was agreed that neither of the executors named in the will ever qualified as such, and that Delaware Morris was appointed administrator with the will annexed, at the March term, 1865, and was discharged at the May term, 1870, of the court of ordinary.

(2) The other special assignments of error are upon the ruling of the court that a judgment rendered at the November term, 1868, of the superior court, in favor of E. S. Bryan against Delaware Morris, administrator with the will annexed, etc., was void for the reasons that it was signed by plaintiff's counsel, and not rendered by the court; and upon the ruling that a sheriff's deed to W. L. Burnett and W. M. Tennille to the land in...