Lee v. Giles
| Decision Date | 21 December 1905 |
| Citation | 52 S.E. 806,124 Ga. 494 |
| Parties | LEE et al. v. GILES et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A deed of bargain and sale made by a trustee as such, who has no interest in the premises conveyed otherwise than as trustee will serve to execute a general power of private sale conferred upon him by the trust deed over the specific property described in his deed, though no reference to the power is therein made. Where the consent of one of the beneficiaries of the trust to an exercise of the power by the trustee is required, it is not necessary that such person should join with the trustee in making the deed, or indorse thereon a written approval of the sale and conveyance; but such consent may be evidenced by a written assent to the sale entered upon an application for leave to sell, presented by a trustee to a judge of the superior court, who, though without jurisdiction to decree a sale of the property independently of the power of sale conferred upon the trustee by the deed of trust, gives his sanction to the proposed sale of the property for the purpose of reinvestment, agreeably to the power of sale conferred upon the trustee.
Although several writings so correlate that all are necessary for the effective consummation of the act sought to be established each instrument should be separately tendered in evidence, in order that opportunity for inspection and objection may be afforded the opposite party; but their collective tender and allowance in evidence over timely protest is not such an irregularity as will require a new trial, where it appears that all of the papers were admissible, and that the opposite party was given full opportunity to urge his objections to each instrument.
Deeds originating from the same grantor, though covering a different tract of land from that in dispute, may be introduced in evidence for the purpose of showing what particular parcel of an entire tract formerly held by him was intended to be conveyed by a deed made to one of the parties litigant, when relevant for this purpose.
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Action by Thomas Lee and Sarah Sheffield against Mrs. John Giles and Andrew Giles. Judgment for defendants, and plaintiffs bring error. Affirmed.
Where the consent of the beneficiary of the trust to an exercise by the trustee of the power of sale therein is required, it is unnecessary that the beneficiary should join with the trustee in making the deed or indorse a written approval of the sale but such consent may be evidenced by a written assent on application for leave to sell, presented by the trustee to the judge of the superior court, who, though without jurisdiction to decree a sale independently of the power of sale, sanctioned the sale for the purpose of reinvestment under the power.
A complaint for land was brought in Bibb superior court by Thomas Lee and Sarah Sheffield against Mrs. John Giles and Andrew Giles; the property which was the subject-matter of the suit being described in the plaintiffs' petition as "one and one-half acres of land lying in South Macon, on the new Houston Road, in said county, and bounded as follows East by the new Houston Road; south by lot recently owned by Thomas Bunkley, now by Avery; west by lot of Mrs. John Giles; north by a street running into the new Houston Road, called ______ street." Plaintiff alleged that they and the defendants claimed the land under a common grantor, John A. Sloan. The abstract of title set forth was a deed from Sloan to William Lee, as trustee for his wife, Nancy R. Lee, for her life, with a remainder to her children at her death, under which deed William Lee and Nancy Lee went into possession. She died in November, 1900, and plaintiffs were her only children living at the time. The defendants set up title by prescription, growing out of the exclusive and adverse possession for a period of 40 years under deeds duly recorded, and alleged that they had made valuable improvements on the premises, in good faith believing they had the legal title thereto. They also set forth the following facts as matter of defense: The deed from John A. Sloan to William Lee, as trustee for his wife, conferred upon him power to sell the land with her consent, and invest the proceeds in other property. On February 17, 1863, he, as trustee, presented a petition to Hon. Osborne A. Lochrane, judge of the superior courts of the Macon district, praying that an order be passed authorizing him to sell the land and invest the proceeds in other property, subject to the same trust. To this petition was annexed the consent of Nancy R. Lee, and on March 26, 1863, his honor passed an order granting the prayer of the petition, and decreeing a sale of the land to the party therein named as the person to whom the trustee desired to sell at a stipulated price. On the same day William Lee, as trustee for his wife and children, made a deed to the property to Mathew S. Anderson, the proposed purchaser just referred to, which deed was properly recorded on May 1, 1863. The defendants averred that the sale and conveyance to him was an execution of the power of sale conferred upon the trustee by the deed from John A. Sloan, and passed title out of the trustee and Nancy R. Lee and her children, and into Mathew S. Anderson, whose grantees are entitled to hold the property as against the plaintiffs, the children of Nancy R. Lee. On the trial of the case the petition by William W. Lee, as trustee for Nancy R. Lee and children, for leave to sell the trust property, together with the accompanying written consent of Nancy R. Lee to the proposed sale and reinvestment, and the order passed by the judge of the superior court granting the prayer of the petition, were introduced in evidence. This order contained the recitation that leave was granted to the trustee to sell the land described in his petition, "it appearing by the deed hereto attached that said William Lee has power to sell with the consent of the said Nancy." His conveyance, executed on the same day, which was also offered in evidence, recited that it was an indenture made "between William Lee, trustee, of the county of Bibb, of the one part, and Mathew S. Anderson," of the same county, of the other part, and that "William Lee, trustee for his wife and children," had granted and did thereby convey unto Anderson, his heirs and assigns, "all that tract or parcel of land bounded as follows: Joining lands of Bryce on the north, lands of Miller on the south, lands of Daly on the east, and Houston Road on the west; also adjoining lands of Monroe Sheffield, and formerly part of same lot, containing one and one-quarter acre, more or less." The deed was signed: "W. W. Lee, Trustee for Wife and Children." The defendants introduced other deeds, made by Anderson and his grantees, for the purpose of tracing title to the land in dispute into John Giles, in whose will they were named as sole beneficiaries. The plaintiffs relied on the trust deed from John A. Sloan to William Lee. The case was submitted to the jury, and a verdict in favor of the defendants was returned. A motion for a new trial, presented to the court, in behalf of the plaintiffs, was overruled, and exception is taken to the judgment rendered on this motion. It contains, aside from the general grounds directed against the verdict, various assignments of error upon rulings made during the progress of the trial, as well as specific complaints of certain instructions given in charge to the jury.
M. G. Bayne, for plaintiffs in error.
M Felton Hatcher and R. Curd, for de...
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