Coleman v. Cabaniss

• Decision Date: 12 November 1904
• Citation: 48 S.E. 927,121 Ga. 281
• Parties: COLEMAN et al. v. CABANISS et al.
• Court: Georgia Supreme Court

48 S.E. 927

121 Ga. 281

COLEMAN et al. v. CABANISS et al.

Supreme Court of Georgia

November 12, 1904

Syllabus by the Court.

1. A power of sale may lawfully reside in one who has no legal or equitable interest in the property which is to be the subject of a sale.

2. A power of sale is a trust.

3. A deed vested in a named person a power of sale and a power to create a lien upon described property, each to be executed under similar conditions. No words of succession followed the name of the person. Provision was made for the appointment of a successor. It was provided that the successor should not have the right to create a lien, and it was also provided that the successor should take the estate "subject to the same uses, limitations, and trusts" as are set forth in the deed. Held, that the power of sale passed to the successor as one of the trusts reposed in the person originally authorized to execute the power.

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by S. T. Coleman and others against J. W. Cabaniss and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Hall & Wimberly, for plaintiffs in error.

Bacon Miller & Brunson, Davis & Turner, Steed & Ryals, and Hardeman & Jones, for defendants in error.

COBB J.

Even though the trust deed vested in the trustee the legal title to only the life estate of Mrs. Coleman, still the power of sale extended to the fee in remainder as well as the life estate. The expression "trust property," which is used in describing the power of sale, is not to be given a technical meaning which would confine it to the life estate if the trust estate created was limited to that estate. The trust property referred to is the fee in the property. As was remarked by Mr. Chief Justice Bleckley in Headen v Quillian, 92 Ga. 223, 18 S.E. 543: "To hold that he contemplated restricting the power of sale to the estate for life would attribute to him a technical narrowness utterly strange to his thoughts and at complete variance with his real state of mind." See, also, Heath v. Miller, 117 Ga. 857, 44 S.E. 13, and cit. So far as the right to exercise the power of sale is concerned, it is immaterial to what class the remainders belong--whether legal or equitable, vested or contingent. The original trustee and his wife, by their joint action, were authorized to convey the fee in the property for the purpose of reinvesting the proceeds in other property. See Heath v. Miller, supra. A lawful sale of the fee in the property could be had at any time during...