Fraser v. Martin
| Decision Date | 13 April 1943 |
| Docket Number | 14470. |
| Citation | 25 S.E.2d 307,195 Ga. 683 |
| Parties | FRASER v. MARTIN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. To the general rule that a lesser estate becomes merged in a greater one there is an exception when it appears that it was the intention of the holder of the instruments creating both estates that a merger should not take place. The intent controls, and such intention may, as in the instant case appear on the face of the writing.
2. The deed conveying the power of sale containing an express provision for the naming of a substitute trustee with a power of sale granted to the original trustee, and the record showing full compliance with the terms of the instrument in this respect, there is no merit in the contention that the sale should have been enjoined because of lack of authority in the new trustee to bring the property to sale.
On March 7, 1929, the Merchants & Mechanics Banking & Loan Company, hereinafter called the loan company, made two loans to Annie Mae Scott, one of $1,000 and the other of $778, secured by separate deeds to the same property, the first having priority over the second. Each deed contained a power of sale, and both were recorded the same day. The $1,000 loan was evidenced by a bond for that sum, executed by the borrower, due five years from date, and bearing interest at the rate of seven per cent. per annum payable semiannually at the office of the loan company in Atlanta. The other loan was evidenced by notes of the borrower, aggregating $778, payable monthly over a period of five years. The deed securing the bond was made to the loan company 'as trustee,' and the company was designated throughout the deed as 'trustee.'
For a recited consideration of one dollar, the loan company, on June 15, 1934, executed a deed to Miss Lizzie Martin, whereby the company 'remised, released, and forever quitclaimed' to her 'all right, title, interest claim, or demand which [the loan company] had or may have had in and under' the deed from Annie Mae Scott securing the $1,000 bond, and wherein it was recited that 'this deed conveys all interest and exercises every right in (said deed from Annie Mae Scott) wherein the grantee herein is the holder of the beneficial interest in said loan deed referred to, and also holds first-mortgage real estate bond for the respective amounts set forth in said deeds and for which said deeds were given to secure,' and that this conveyance is 'limited only to such interest as was conveyed to the grantor herein under said deed' from Annie Mae Scott to the loan company.
The record does not disclose whether or not the foregoing deed was recorded, nor whether or not the bond and deed securing the same were otherwise transferred and assigned to Miss Martin; but counsel for both parties in their briefs state that both the deed and the bond were 'duly transferred and assigned' to Miss Martin, and her right and title to the same are not questioned.
On October 8, 1934, Annie Mae Scott, in consideration of 'one dollar and other consideration,' conveyed the property by warranty deed to G. W. Smith, subject to her indebtedness to the loan company, 'as recorded in Deed Book 1069, page 245, and Book 1161, page 643, Fulton County Records,' and G. W. Smith, in consideration of 'five dollars and other considerations,' on January 16, 1936, in turn conveyed the property by a similar deed to Miss Martin, subject to the same indebtedness. Both deeds were duly recorded.
On October 1, 1938, the loan company transferred and assigned to S. A. Fraser the notes of Annie Mae Scott and the deed securing the same. This transfer was recorded on October 19, 1942.
On November 2, 1942, Miss Martin executed an instrument, in the presence of two witnesses, one a notary public, which was recorded in Deed Book 1069, page 345, date not shown, reading as follows: 'Whereas the undersigned is the holder of a first-mortgage real-estate bond signed by Annie Mae Scott, dated March 7, 1929, and due March 7, 1934, together with a security deed signed by said Annie Mae Scott, dated March 7, 1929, which was given to the Merchants & Mechanics Banking & Loan Company, as trustee, conveying certain property at 188 Bailey Street as security for said bond, said deed being recorded in Deed Book 1069, page 245, Fulton County Records, and whereas the Merchants & Mechanics Banking & Loan Company, having dissolved its charter, is no longer in life, and is incapable of acting as trustee aforesaid, and whereas under the terms of said security deed, and in compliance with paragraph seven of same, the undersigned, who is the sole owner of the bond secured by said deed, does hereby name and appoint J. Caleb Clarke as successor trustee to act under and in accordance with the rights, powers, and duties as belonged to the original trustee, under said deed.'
On November 21, 1942, the property was advertised by J. Caleb Clarke as trustee, to be sold on the first Tuesday in December, 1942, 'by virtue of the powers contained in a security deed from Annie Mae Scott to the Merchants & Mechanics Banking & Loan Company, as trustee, dated March 7, 1929.' Although it is recited in the bill of exceptions that the advertisement was put in evidence, a copy does not appear in the record.
The foregoing is a brief summary of all the evidence appearing in the record, except a letter from John B. Wilson, Secretary of State, stating that the Merchants & Mechanics Banking & Loan Company had not surrendered its charter, and the testimony of the plaintiff in error that he was cashier of the Merchants & Mechanics Banking & Loan Company, and that they had not dissolved their charter and were still active, and had not been requested to resign as trustee of the property.
Fraser brought to the superior court a petition in which he named as defendants J. Caleb Clarke, as trustee, and Lizzie Martin, and alleged that the defendant Clarke had advertised the property for sale and was proceeding with said sale illegally, for the following reasons: that said loan deed and the rights under said deed and the note secured by same were quitclaimed to Miss Lizzie Martin on or about June 15, 1934; that Annie Mae Scott conveyed by warranty deed to G. W. Smith on or about October 8, 1934, said deed being subject to said loan; that G. W. Smith conveyed by warranty deed to Miss Lizzie...
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Gosnell v. Waldrip, 61981
...estates unite, provided the intention is just and fair, and a merger will not be permitted contrary to such intent." Fraser v. Martin, 195 Ga. 683(1), 687(1), 25 S.E.2d 307. Further, the doctrine of merger, designed primarily for the one who acquires an interest in the property greater than......
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Tompkins v. U.S., 90-8825
...681, Mortgages, § 441). This equitable exception to the merger doctrine has been decisive in many Georgia cases. See Fraser v. Martin, 195 Ga. 683, 25 S.E.2d 307 (1943) ("Whenever a merger will operate inequitably, it will be prevented. The controlling consideration is the intention, expres......
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...would not occur if the result would extinguish a loan, contrary to the expectations and intentions of the parties. Fraser v. Martin, 195 Ga. 683, 25 S.E.2d 307 (1943). Under these circumstances neither Mrs. Atef nor her son-in-law intended that Mrs. Atef would forfeit the purchase money in ......
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Matter of Green Rivers Forest, Inc.
...occurs when the person in whom the two estates meet did not intend for a merger to take place. See, e.g., Fraser v. Martin, 195 Ga. 683, 687, 25 S.E.2d 307, 310 (1943). Here, the evidence before the Court suggests that Aetna did not intend for the estates to merge in a way that would cause ......