Brady v. Walters

• Citation: 55 Ga. 26
• Parties: Mary J. Brady et al., plaintiffs in error. v. Simeon Walters,defendant in error.
• Decision Date: 31 July 1875
• Court: Georgia Supreme Court

55 Ga. 26

Mary J. Brady et al., plaintiffs in error. v. Simeon Walters, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

*Trusts. Prescription. Fraud. Statute of limitations. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1874.

Reported in the decision.

W. A. Hawkins; B. P. Hollis; J. W. Brady; G. W. Wooten, for plaintiffs in error.

Cook & Crisp, for defendant.

Warner, Chief Justice.

This was an action of ejectment brought by the plaintiffs against the defendant to recover the possession of lot of land number two hundred and ten, in the twenty-seventh district of Sumter county. On the trial of the case, the jury, under the charge of the court, found a verdict for the defendant. A motion was made by the plaintiffs for a new trial on the several grounds set forth therein, which was overruled by the court, and the plaintiffs excepted.

The plaintiffs claim title to the land in dispute under a deed made by Wright Brady, dated 26th of January, 1860, by which the grantor conveyed the lot of land to Mary Jane Brady, the. wife of Martin J. Brady, for her sole and separate use, and for the use of her children born and to be born, to have and to hold the same for the uses aforesaid. Some time in the year 1863, probably in October, the exact date does not appear, Mary Jane Brady and her husband, petitioned the judge of the superior court to appoint the said Martin J. Brady, the husband of said Mary Jane, trustee for herself and children, and also prayed for an order to sell said land, and invest the proceeds thereof in more productive property, for the benefit of the said Mary Jane and her children. On hearing and considering the application, the judge appointed Martin J. Brady trustee for his wife Mary Jane and her children, naming them, upon his giving bond and security in the sum of $4,000 00 faithfully to account for his cestui que trusts for the product of said sale and the investing the *same in any other property for their benefit, and that he make a proper return of his actings and doings in the premises to the next term of Sumter superior court. The bond and security was given by the trustee in pursuance of the order, and leave was granted by the order of the judge to the trustee to sell the land as prayed for, and for the purpose as therein specified, and to make a deed of conveyance to said lot of land, as trustee, to the purchaser thereof. The order is silent as to whether the trustee should sell the land at public or private sale. It appears from the evidence in the record that the trustee sold the land to the defendant, Richardson, at private sale, for the consideration of $6,000 00, and on the 26th of December, 1863, made him a deed thereto, as trustee, reciting therein that it was made in pursuance of the aforesaid order of the judge of the superior court. Richardson went into possession of the land under that purchase and deed, and continued in possession thereof, either by himself or tenants, up to the commencement of the plaintiffs' action on the 4th of September, 1872. The defendant set up in his plea a title by prescription, under his seven years possession under color of paper title and claim ofright, by virtue of his purchase from the trustee of the plaintiffs, as before recited.

1. The deed from Wright Brady to Mary Jane Brady created a trust estate for her sole and separate use, and for the use of her children then born and to be born, in the land conveyed by it. No formal words were necessary to create a trust estate: Code, section.2305. When Martin...