Luquire v. Lee
| Decision Date | 26 January 1905 |
| Citation | 49 S.E. 834,121 Ga. 624 |
| Parties | LUQUIRE v. LEE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Though the premises were not described in the petition with sufficient fullness, yet the description was not so indefinite but that an amendment more particularly describing the premises was allowable.
2. A grantor in 1852 conveyed land by deed to a named trustee, his heirs and assigns. The habendum clause was: Mrs. Lee died in 1900, without remarriage. Held: (1) The estate created was a joint life estate in Nancy R. Lee and her children during the life of Mrs. Lee, with a fee-simple estate in remainder to the children of Nancy R. Lee who survived her; (2) that the trustee took the legal title to the life estate only; and (3) that the power of sale conferred on the trustee was a special personal trust, and one which did not pass to a successor.
3. The power of sale referred to in the preceding headnote expired with the death of the trustee. The judge of the superior court, upon petition of one of the beneficiaries, at chambers, could appoint a successor to the deceased trustee but was without jurisdiction over the legal estate in remainder so as to confer upon the new trustee the power of sale vested by the deed in the deceased trustee.
4. Coincidence of two independent estates presently held by one and the same person or class of persons is a necessary prerequisite to merger. There can be no merger of estates until such identity of person and of present interest in point of fact exists.
5. As the trustee did not represent the estate in remainder, and there was no merger of estates, the possession of the defendant did not become adverse to the remaindermen until the death of the life tenant.
6. The estate in remainder by the terms of the deed was limited to the surviving children of Mrs. Lee. Heirs of a child who died before Mrs. Lee died took no interest in remainder under the deed.
7. The evidence was insufficient to support the equitable plea that the proceeds of the land improperly sold by the substituted trustee was invested in other land, which was conveyed to him as trustee for his wife and children, and which had been partitioned between the plaintiffs.
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Action by Thomas Lee and Sarah Sheffield against H. F. Luquire. Judgment for plaintiffs, and defendant brings error. Affirmed.
Lane & Park, for plaintiff in error.
M. G Bayne, for defendants in error.
This was an action of ejectment, brought against H. F. Luquire by Thomas Lee and Sarah Sheffield, who claimed title to the premises in dispute as remaindermen under a deed dated January 10, 1852, from Anna Jepson to Thomas P. Stubbs trustee. This deed purported to convey to "Thomas P. Stubbs, his heirs and assigns," a certain described parcel of land in Bibb county, containing four acres. The habendum clause was: The deed also contained a general warranty of title "unto the said Thomas P. Stubbs, upon the use aforesaid, his heirs, executors, administrators and assigns." Nancy R. Lee died in November, 1900. The plaintiffs' action was commenced in March, 1903.
To this action the defendant interposed the following defenses: (1) Defendant, and those under whom he claims, have been in open, notorious, uninterrupted, exclusive, and adverse possession of the premises sought to be recovered for a period of 40 years, holding the same under deeds duly executed and recorded, and the defendant therefore has title by prescription. (2) On January 9, 1861, by an order passed by the judge of the superior court of the Macon circuit, William W. Lee, the husband of Nancy R. Lee, was, upon her petition, appointed trustee instead of Stubbs, the nominated trustee, who had previously died; said order of court conferring upon the substituted trustee "like powers, duties, and liabilities as were originally conferred on the said Thomas P. Stubbs in relation to the property mentioned in the deed of trust," which gave to him a power of sale for the purpose of reinvestment, with the consent of Nancy R. Lee and her husband. On April 3, 1863, William W. Lee, as trustee for his wife and children, and in execution of this power of sale, sold and conveyed the premises, with the written consent of Nancy R. Lee, to William T. Nelson, under whom the defendant claims as grantee. (3) The proceeds of this sale, amounting to $2,500, were invested by William W. Lee, as trustee, in another tract of land in Bibb county, purchased from and conveyed by one Durin Murray on July 23, 1863, the conveyance being made to William W. Lee as trustee for his wife and her children. The sale of the trust property and the investment of the proceeds in the tract of land last referred to "was with the full knowledge of the said Nancy R. Lee and her children," who immediately entered into possession of the land, and held, owned, and enjoyed the same, receiving the full benefit thereof as tenants in common until January 27, 1888, when, by the judgment of Bibb superior court upon the petition of Thomas Lee, one of the plaintiffs in this suit, said tract of land was partitioned, and each received his or her respective share in severalty. The plaintiffs, having thus received and enjoyed the full value and benefit of the property sold by their trustee, William W. Lee, and having in no way accounted or offered to account for the same, are now estopped from claiming the property so sold.
A trial of the case was had on the merits. After the plaintiffs announced closed, the defendant made a motion for a nonsuit. The plaintiffs thereupon amended their petition by more fully describing the premises sued for, and the court overruled the motion to nonsuit. Evidence in behalf of the defendant was then submitted, and the plaintiffs introduced testimony in rebuttal. After the conclusion of both sides had been announced, the court was asked by counsel for the plaintiffs to direct a verdict in their favor, which the court, after hearing argument, accordingly did. Exception is taken by the defendant below both to the overruling of his motion to nonsuit, to the allowance of the amendment to plaintiffs' petition, and to the judgment of the court directing a verdict against him. The questions thus presented for our determination will be briefly stated and disposed of in the discussion of the case which follows.
1. As originally framed, the plaintiffs' petition described the premises sought to be recovered as a "tract or parcel of land lying and being in the county of Bibb, and in the Godfrey district, in the suburbs of the city of Macon, and more particularly described as follows: Fronting on the New Houston Road on southwest; on north by lands claimed by Jane Jones, being 1/4 acre, more or less." By way of amendment the plaintiffs alleged that this one-fourth acre was "in the shape of a triangle fronting on New Houston Road on the southwest, and on the opposite side by street name of which is unknown to plaintiffs; that said triangle is bounded on the north by lot now claimed by one Berry Hall, on which he now resides, and being a part of original lot No 46, described in the deed from Anna Jepson to Thos. P. Stubbs, trustee, recorded in Book L, page 253, clerk's office, Bibb superior court." The defendant objected to the allowance of the amendment on the ground that "the original petition did not contain enough to amend by, and that the amendment offered set up a new and distinct cause of action, it appearing from the amendment that different property from that attempted to be described in the original petition was sought to be recovered." In support of this position counsel for the plaintiff in error cite the cases of Turner v. Rives, 75 Ga. 606, and Harwell v. Foster, 97 Ga. 265, 22 S.E. 994, in which this court pointed out the necessity of describing premises sought to be recovered...
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