Chattanooga Iron & Coal Corporation v. Shaw

• Decision Date: 16 April 1924
• Docket Number: 3989.
• Citation: 122 S.E. 597,157 Ga. 869
• Parties: CHATTANOOGA IRON & COAL CORPORATION v. SHAW ET AL.
• Court: Georgia Supreme Court

122 S.E. 597

157 Ga. 869

CHATTANOOGA IRON & COAL CORPORATION v. SHAW ET AL.

No. 3989.

Supreme Court of Georgia

April 16, 1924

Syllabus by the Court.

As the trial resulted in a verdict in favor of the plaintiffs, and as the defendant moved for a new trial on the ground, among others, that the verdict is contrary to the evidence, the questions raised by the refusal of the judge to grant a nonsuit can be more fully and properly considered in disposing of the grounds of the motion for new trial.

A certified copy of a will, executed in the state of Tennessee witnessed according to the laws of this state, and duly probated in the state of Tennessee, is admissible as a muniment of title to lands in this state, in an action of trespass brought by plaintiffs, who claim under a purchaser by deed from the executors of such will, made in pursuance of a power of sale contained therein, without the probate of the will in this state, when accompanied by an exemplification of the record admitting the will to probate in the state of Tennessee, certified according to the act of Congress, when such will is recorded in the book in which deeds are recorded in the office of the clerk of the superior court of the county in which the land is located.

A warranty deed executed to lands in this state by the executors of such will as parties of the first part and to the grantee therein as party of the second part, which does not recite that the sale was at public outcry after due advertisement, and where there is no proof submitted that the property thereby conveyed was advertised and sold by the executors at public outcry, will be deemed and held to have been made in pursuance of a private sale.

(a) Where the testator devised the residuum of his estate in trust to his executors for the purpose of preserving it, for collecting the income therefrom for a period of five years from the date of the probate of his will, and for applying such income as therein directed, and provided that his executors "shall have power to sell any or all of the property of said trust estate, and to reinvest the proceeds of any such sale in such other safe and suitable form as shall seem best to them," his executors, acting as trustees of the property so devised to them in trust, were authorized to sell any or all of such property at private sale; the method of sale, as well as the manner of reinvestment, being left to the discretion of his executors.

A sale by the executors of property so devised to them in trust, and a conveyance thereof to a purchaser, were not void because such property was held adversely to such trust estate at the time such sale was made.

(a) The principle embraced in section 4033 of the Civil Code of 1910 even if applicable to sales by executors (which is not decided), will not be extended to a sale by executors to whom the testator devises property in trust with authority to sell the same, and in effecting which such executors act as trustees.

The other assignments of error are without merit.

Error from Superior Court, Walker County; Moses Wright, Judge.

Suit by F. M. Shaw and another against the Chattanooga Iron & Coal Corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

F. M Shaw and C.J. Evitt, the latter as administrator of the estate of W. C. Evitt, deceased, brought suit, on July 25 1921, against the Chattanooga Iron & Coal Corporation, to recover damages for the mining and removing of iron ore from certain described lands to the ores on which they claimed title, and for damages from the improper and negligent mining of said ores. They alleged, that from March 27, 1918, Shaw and W. C. Evitt have been tenants in common and owners of the iron ores, mining privileges, and rights in said lands, on which there are large and valuable deposits of iron ore, that, beginning about March 27, 1918, said company unlawfully entered upon said lands and began to mine and remove therefrom ore, and until about September, 1922, did mine and remove therefrom ore of the value at $6,250, and that by the negligent manner in which the ore was mined the ore deposits in said lands have been rendered less valuable in the sum of $3,000. They attached to their petition an abstract of title consisting of a warranty deed from John Dickerson and Augustus B. Culberson to Henry Hise, dated December 6, 1859, recorded December 16, 1859, conveying lot No. 287 in the Twelfth District, Fourth section of Walker county, Ga.; a deed from Henry Hise to H. S. Chamberlain, dated May 24, 1882, recorded February 7, 1887, conveying the iron ore on the west half of lot No. 287 and the northwest 40 acres of lot No. 290 of said district and section; a warranty deed from H. S. Chamberlain to the Chickamauga Iron Company, dated June 20, 1890, recorded January 15, 1892, conveying the above mineral interests; a warranty deed from the Chickamauga Iron Company to H. S. Chamberlain, dated June 13, 1910, recorded June 14, 1910, conveying the above mining interests; the last will and testament of H. S. Chamberlain, late of Chattanooga, Hamilton county, Tenn., dated November 8, 1912, probated at the March term, 1916, of the county court of Hamilton county, Tenn., and recorded in the book of wills of said county, in which Morrow Chamberlain and H. S. Chamberlain, Jr., were appointed executors; a warranty deed from Morrow Chamberlain and H. S. Chamberlain, Jr., as such executors, to W. C. Evitt, dated October 24, 1917, and recorded March 30, 1918, conveying the above mining interests; and a warranty deed from W. C. Evitt to F. M. Shaw, dated March 27, 1918, recorded April 2, 1918, conveying an undivided half interest in the above mining rights. They further alleged, that they and the defendant claim title under Henry Hise as a common grantor; that the defendant held under a deed from W. W. S. Myers, administrator of Henry Hise, deceased. to H. P. Lumpkin, dated April 2, 1898, a quitclaim deed from Saphrona Hise to H. P. Lumpkin, dated April 5, 1898, purporting to convey the lands willed by said Henry Hise to Saphrona Hise, and by subsequent mesne conveyances, that on January 28, 1919, F. M. Shaw and W. C. Evitt filed in Walker superior court their petition against defendant, to recover damages in the matter hereinbefore set out; that after the death of W. C. Evitt, C.J. Evitt, as his administrator, was, on May 31, 1920, regularly made a party plaintiff in lieu of his intestate; and that on March 7, 1921, petitioners dismissed said suit and have since paid the costs therein, and now within six months renew their suit.

In its answer to the petition of the plaintiffs the Chattanooga Iron & Coal Corporation denied the substantial allegations thereof, except it admitted that on January 28, 1919, F. M. Shaw and W. C. Evitt filed a petition seeking damages of the defendant for alleged trespasses on the lands described, and that C.J. Evitt was subsequently made a party in said proceeding. The defendant further alleged that on March 1, 1911, Spencer S. Marsh, by warranty deed, conveyed to C. E. Buek all the iron ore and mining rights in the premises in dispute, that in 1913 C. E. Buek conveyed said ore and mining rights to defendant, who then went into possession of the same and has continued to mine ore from said lands, and that the defendant and those under whom it claims have acquired a good title by prescription to the premises in dispute.

On the trial of the case the appointment of C.J. Evitt as administrator of the estate of W. C. Evitt was admitted by defendant, without proof. Plaintiffs introduced in evidence the deeds set out in the abstract of title attached to their petition, and a copy of the proceedings probating the last will of H. S. Chamberlain in the county court of Hamilton county, Tenn., together with a copy of the will, certified under the act of Congress, and recorded in the office of the clerk of the superior court of Walker county, Ga., on February 28, 1922; these proceedings consisting of the petition of Morrow Chamberlain and H. Sanborn Chamberlain for the probate of the will of H. S. Chamberlain and for letters testamentary, and the order of the court admitting said will to probate, and reciting that the executors duly qualified, and that letters testamentary were issued to them. The pertinent provisions of said will are as follows:

"All the rest and residue of my estate of which I may die seized and possessed, of whatever kind and description and wheresoever situated, I devise in trust to my executors hereinafter named, for the following purpose, viz.: My said executors and trustees shall preserve said property and collect the income, interest, dividends and profits therefrom for a period of five years from the date of the probate of this my will. Said executors shall have the power to vote the stocks belonging to said trust estate, at any and all meetings of the corporations issuing said stock. The said executors shall have power to sell any or all of the property of said trust estate, and to reinvest the proceeds of any such sale, in such other safe and suitable form, as shall seem best to them."

The deed from the executors of H. S. Chamberlain, deceased, to William C. Evitt was dated October 24, 1917, and recorded March 30, 1918, and conveyed the premises in dispute for an alleged consideration of $100; this conveyance being a warranty deed between "Morrow Chamberlain and H. S Chamberlain, Jr., executors of the estate of H. S. Chamberlain, deceased, parties of the first part, and W. C. Evitt, party of the second part," without recitals that the executors conveyed the property in dispute as a part of the estate of H. S. Chamberlain, and that the sale was at public outcry. Plaintiffs introduced evidence tending to show that Henry Hise died in...