Sargeant v. Burdett

• Decision Date: 15 April 1895
• Citation: 22 S.E. 667,96 Ga. 111
• Parties: SARGEANT et al. v. BURDETT.
• Court: Georgia Supreme Court

22 S.E. 667

96 Ga. 111

SARGEANT et al.

v.BURDETT.

Supreme Court of Georgia.

April 15, 1895.

Trust in Behalf of Grantor—Validity.

A person cannot, by deed, create out of his own property, upon his own behalf, a trust estate. A deed executed for such a purpose is void, and passes no interest, legal or equitable, to the trustees named. In such a case the whole title remains in the grantor, and the property so sought to be conveyed is subject to the payment of his debts. (Syllabus by the Court.)

Error from superior court, Coweta county; S. W. Harris, Judge.

Claim by H. B. Sargeant and others, as trustees, for the possession of land levied on in an action by A. R. Burdett against H. J. Sargeant Brought forward from the last term. Code, §§ 4271a-4271c. Judgment for Burdett, and Sargeant and others bring error. Affirmed.

W. A. Turner, for plaintiffs in error.

Atkinson & Hall and A. D. Freeman, for defendant in error.

ATKINSON, J. According to the record in this case, the defendant in execution, H. J. Sargeant, being the owner of the property levied on, previous to the rendition of the judgment against him, conveyed the same by deed to the claimants, the same to be held by them as trustees, the incomes, rents, and profits of the property to be applied to the support and maintenance of the grantor and his wife. The grantor was sui juris, —in the full possession of his mental faculties, —else he could not convey by deed at all, and the only reason assigned by him for the creation of this alleged trust in his own behalf was, in the language of the deed, "that he is far advanced in life, being more than sixty-nine years old, and, by reason of great bodily affliction, has become much enfeebled physically, and is now unable to manage, superintend, and protect his estate." The statute of uses was designed to discourage the practice of creating trusts, it being thereby declared to be the settled policy of the English law, accepted and incorporated by us in our system of jurisprudence, that the title to real property should follow the use, and therefore express trusts are the exception to the general rule, and are capable of creation only in cases provided for by express statutory enactment. Our Code provides for the creation of trusts only in favor of certain specified classes of persons, viz. minors, persons non compos mentis, and such persons who, on account of mental weakness, intemperate habits, wasteful and profligate habits, are unfit to be put in the management and right of property. Since the passage of the woman's enabling act of 1866, though prior thereto it could be done, a trust cannot now be created in favor of a woman because of her sex alone, because, whether she be feme sole or feme covert, she is capable to take in law the absolute fee, free from the debts and control of her husband, and therefore, inasmuch as a trust attempted to be created in favor of a woman, married or single, stands executed eo instanti with its creation, it is incapable of being created. Upon this reasoning, it has been held in Gray v. Obear, 54 Ga. 231, that a...