Artope v. Goodall

• Decision Date: 31 July 1874
• Parties: James B. Artope, trustee, et al, plaintiffs in error. v. William P. Goodall, executor, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 319

James B. Artope, trustee, et al, plaintiffs in error. v. William P. Goodall, executor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Trusts. Husband and wife. Marriage contract. Evidence. Vendor and purchaser. Deeds. Witness. Before Judge Herschel V. Johnson. Bibb Superior Court. October Term, 1873.

This is the third time this litigation has been before this court: See 42 Georgia Reports, 95, and 48 Ibid., 537.

This was ejectment for part of lot number fifteen, in the western range of two acre lots in the city of Macon, by Doe upon the demises of J. B.: Artope, as trustee of Mrs. Elizabeth W. McLaughlin, (made party instead of George M. Logan, former trustee, who died pendente lite,) and of Georgia, Emma, Alexander and Charles J. McLaughlin, children of said Elizabeth, against Roe, casual ejector, and William P. Goodall, as executor of Robert P. McEvoy, tenant in possession. The defenses were not guilty, title by prescription and an equitable plea.

Plaintiff gave in evidence a marriage settlement made in Richmond county, Georgia, on the 28th December, 1830, between *Alexander R. McLaughlin, of Bibb county, Elizabeth W. Bugg, of Richmond county, and John T. Lamar, of Bibb county, signed by the three, recorded in Richmond county, on March 22d, 1831, and in Bibb county on the 2d February, 1870.

This marriage settlement is set out in full in 42 Georgia, page 97. John T. Lamar died in 1842. On petition of Mrs. McLaughlin and her children, George M. Logan was, on the 16th of April, 1869, by the chancellor of Bibb county, duly appointed trustee to succeed said John T. Lamar, with his powers, rights and duties, as set forth in said papers, and Logan accepted the trust. Logan died pending this suit, and Artope was appointed in his stead.

Plaintiffs next read in evidence a lease made the 11th of July, 1836, by the mayor and council of Macon to John T. Lamar, as trustee for Mrs. McLaughlin, embracing the premises in dispute, recorded February 1st, 1870, (a copy of which is set out in 42 Georgia, page 99.)

Several witnesses were introduced by both plaintiff and defendant, in connection with other testimony, but the following facts are sufficient for a clear understanding of the points decided. The marriage settlement secured to Mrs. McLaughlin, through a trustee, her property to her separate use, free from the power or control or liability for the debts of her husband. The evidence showed that the property in dispute had been purchased with the hire of the negroes embraced in the said marriage settlement, and with other trust funds.

The lease from the city of Macon to John T. Lamar, trustee for Mrs. McLaughlin, contained no words of separate use. This instrument had been lost for twenty years, and only found a short time before the bringing of this suit.

Mrs. McLaughlin died before the trial of this case, and there was no administrator upon her estate. The defendant introduced a deed to the premises from A. R. McLaughlin, (husband of Mrs. McLaughlin,) to White & McLaughlin, copartners, consideration, one dollar, dated May 23d, 1843, and duly re corded. A deed from the sheriff of Bibb to Thomas *A. Brown, dated March 6th, 1849, the lot being sold as White's property. A deed from Thomas A. Brown to Joseph A. White, dated January 10th, 1851, being a quit claim. A deed from Joseph A. White to Edward L. Strohecker to one-half interest in lot number fifteen, dated July 1st, 1852. A deed from R. F. Baldwin, as executor of Joseph A. White, to Thomas Stubbs, to one-half undivided interest in lot number fifteen, dated March 15th, 1855. A deed from Thomas Stubbs to J. A. Ralston covering one undivided half of lot number fifteen, dated June 6th, 1859. A deed from J. A. Ralston to Edward L. Strohecker to west half of lot number fifteen, dated October 23d. 1860. A deed from Edward L. Strohecker to William P. Goodall as executor of McEvoy, dated 24th September, 1872.

There were several witnesses introduced for the purpose of impeaching Alexander R. McLaughlin, introduced by the plaintiff. Strohecker, Goodall and others, testified that at the time they purchased they had no knowledge or notice of Mrs. McLaughlin's equity, or that the property in dispute was her trust property, or that her money paid for it.

The jury found for the defendant. Plaintiff's counsel moved for a new trial upon the following grounds, among others:

1st. Because the court erred in refusing to allow A. R. McLaughlin to testify what instructions were given to the city officials as to the person to whom the lease was to be made, and that there was a mistake in leaving out a part of those instructions.

2d. Because the court erred in refusing to allow James M. Jones (a witness introduced to sustain A. R. McLaughlin,) to be asked if he would believe the said McLaughlin upon his oath— Jones having stated that McLaughlin's general character had been exemplary in some things, and in others not, but that he did not know the general opinion of the people about him.

3d. Because the court erred in charging as follows: "That the deed from McLaughlin to White & McLaughlin was recorded, and so was the deed from White to Strohecker. *This was constructive notice to Strohecker that title was in White. It is true that a purchaser is bound to look to his title, and he buys at his peril as against the true owner, and he is not a bona fide purchaser, if by ordinary diligence he could have ascertained the true owner. But if the true owner has his deed concealed or lost by his own act, so that the purchaser could not by such diligence ascertain who the true owner was, and the true owner stands by knowing of his purchase, and permits him to go on and make improvements, he cannot set up the want of bona fides against such purchaser. Therefore, if you...