Shacklett v. Ransom

• Citation: 54 Ga. 351
• Parties: Henry Shacklett, plaintiff in error. v. William A. Ransom,defendant in error.
• Decision Date: 31 January 1875
• Court: Georgia Supreme Court

54 Ga. 351

Henry Shacklett, plaintiff in error. v. William A. Ransom, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Warranty. Deeds. Trusts. Sales. New trial. Immaterial error. Before Judge Underwood. Floyd Superior Court. July Adjourned Term, 1874.

Shacklett brought suit by attachment against Ransom for breach of the following warranty:

"And the said William A. Ransom, trustee, his heirs, executors, and administrators, and successors in said trust, the said lands unto the said Henry Shacklett, bis heirs, executors, administrators and assigns, against the said William A. Ransom, trustee, and his successors, and his heirs, executors, and administrators, and all and every other person, shall and will warrant and forever defend, by virtue of these presents.

"In witness whereof, the said William A. Ransom, trustee, hath hereunto set his hand and affixed his seal, the day and year first above written.

(Signed) "William A. Ransom,

"Trustee for Sarah Ransom.

Signed, sealed and delivered in presence of:

"J. W. H. Underwood,

"C. H. Smith, Notary Public."

The defendant pleaded the general issue.

The evidence presented the following facts:

The warranty was made as stated in the declaration. The deed containing the same was executed under authority of an order of the chancellor based on a petition of the trustee, in which he alleged that on December 30th, 1862, in consideration of love and affection, he had title made to him in trust for his wife, Sarah Ransom, to certain lands which he had purchased with his own money; that he was offered by the plaintiff a satisfactory price for said property, to-wit: $7,000 00, and he desired to sell and reinvest in more desirable lands; that he therefore asked leave of the chancellor to sell and reinvest. Upon which was indorsed the order above referred to, as follows:

*"At Chambers, April 17th, 1863.

"Read and sanctioned. The petitioner is hereby authorized to sell the lands named, and to reinvest the proceeds in other lands, and make return to the clerk of the superior court of Floyd county, and that said return be entered of record.

(Signed) "Lucius H. Featherston, J. S. C."

The land was sold under an execution against Ransom's vendor, and the plaintiff evicted. The court charged the jury as follows:

"1st. Before you can find for the plaintiff, it must appear to you from all the evidence in the case, that the defendant, in executing the deed, as trustee, intended to bind himself personally by the warranty. In order to ascertain the intention, you should look at and consider the words of the deed and their legal construction, as stated to you, and all the other proof and evidence in the case, and the technical construction of the words in the deed may be overcome, if the proof in the case shows them to be incorrect.

"2d. If the proof shows that Gibbons was the agent of the plaintiff to negotiate and make the trade, pay the money and receive the deed, and his attention was called to the judgment lien on the property which sold it and evicted the plaintiff, this was a patent defect or incumbrance oh the property, and the warranty does not cover this, if it was intended by the parties that the warranty should not extend to this lien, or, in other words, unless it is made to appear from all the proof that a warranty was intended to be made to protect the purchaser against that lien."

To both of these charges the plaintiff excepted. Exceptions were also taken to various rulings of the court on the admission of testimony, immaterial here.

The jury found for the defendant. The plaintiff moved for a new trial based upon the above exceptions. The motion was overruled, and he assigns said judgment as error.

Dabney & Fouche, for plaintiff in error.

*Alexander & Wright, for defendant.

McCAY, Judge.

1. It is doubtless true, as was decided by this court in 3d Georgia, 383, and 11th Ibid., 1, that at common law the deed made by Ransom, as trustee, would, in its warranty clause, bind the maker of it personally; as he could not bind the trust estate, the law would charge him personally with the covenant. But by our act of 1853 this common law rule is changed, and it is provided that in deeds made by executors, administrators, trustees, etc., any warranty therein shall not bind the executor, trustee, etc., personally, unless it be plain from the deed itself that such was the intention of the parties. Some question was made on the argument that this act does not, in terms, apply to trustees. But the title of the act so declares, and whilst it is true that the word trustees is left out at one place in the act, it recurs again in it in the latter clause. Taking the whole act together, it is plain to us that the intent was not only to change this common law rule but, in terms, to make the change apply to trustees as well as to executors, administrators and sheriffs. It is said again that the Code contains no declaration of this new rule as to trustees. But we are of the opinion, that in construing the Code on this subject, we are to remember that its main object was to codify the law, and that all...