Steele v. Graves
| Decision Date | 11 March 1925 |
| Docket Number | 4644. |
| Citation | 127 S.E. 465,160 Ga. 120 |
| Parties | STEELE v. GRAVES ET AL. |
| Court | Georgia Supreme Court |
Error from Superior Court, Polk County; F. A. Irwin, Judge.
Suit by C. H. Graves against M. L. Steele and another. Judgment for plaintiff, and defendant named brings error. Affirmed.
(1) In addition to the facts which appear in the report of this case when it was here before (Steele v. Graves, 156 Ga 650, 119 S.E. 690), the following facts are essential to an understanding of the rulings of this court. In the third paragraph of the petition it is alleged that on December 1 1919, J. W. Steele conveyed the land involved in this litigation to R. O. Pitts, trustee under the will of E. C Graves, to secure a loan of $2,000 principal. In the fourth paragraph it is alleged that this debt was evidenced by a note given by Steele, that the note and the security deed provided for the payment of interest a 8 per cent. annually on December 1st of each year, and that on default in the payment of any annual installment of interest the whole debt should become due and collectible. In the fifth paragraph it is alleged that Graves brought suit against Pitts, as trustee, for the purpose of having the trust created under the will of E. C. Graves decreed to be executed and the title to the property decreed to be in him individually, and that the court did, in September, 1920, pass a formal decree granting the relief prayed. In the sixth paragraph it is alleged that on October 29, 1920, Pitts, as trustee transferred, assigned, and conveyed unto Graves said note for $2,000, together with all right, title, and interest held by said trustee in the real estate conveyed to secure the payment of said note. In paragraph 7 it is alleged that the debt became due because of the nonpayment of interest, and that Graves advertised the property for sale on the first Tuesday in February, 1923. In the eighth paragraph it is alleged that Graves sold said property at public outcry in pursuance of said advertisement, before the courthouse door in Cedartown between the legal hours of sale on the first Tuesday in February, 1923; that said property was knocked off to him, he being the highest bidder, at and for the sum of $1,250; and that under the authority of said security deed Graves, both individually and as attorney in fact for Steele executed his deed conveying title to said land to himself. To each of these paragraphs the defendants demurred specially upon the ground that the respective writings and proceedings referred to in each of such paragraphs were not set out therein nor attached thereto as exhibits. The defendants demurred specially to the seventh paragraph on the further ground that it appeared therefrom that the principal debt was not due at the time of the alleged sale, and that, in the absence of having the security deed set forth in the petition or attached thereto as an exhibit, the allegation that the debt became due and collectible was a mere conclusion of the pleader. The court overruled the special demurrer.
(2) The plaintiff offered in evidence an equitable petition brought by him against R. O. Pitts as trustee, to the August term, 1919, of Polk superior court. This petition alleged these facts: Petitioner and Pitts are residents of Polk county. The father of petitioner was a resident of the state of Massachusetts, who died there in 1912, leaving a will which was duly probated in that state. Under the terms of this will testator bequeathed to George A. Graves two-thirds of the residue of his estate "in trust to hold, manage, invest, sell and reinvest, with full power to sell real estate in his discretion, to pay the net income thereof semiannually, or, if it seems to him expedient, quarterly to * * * Chester H. Graves during his life, and at his death to pay the principal of said estate as he may direct, and, if he leaves no will to his heirs." George A. Graves qualified as such trustee and acquired possession of the property so going to him as such trustee, except a small portion which remained in possession of the executor. George A. Graves resigned as such trustee. His resignation was accepted by the Massachusetts court having jurisdiction of the administration of the estate. Pitts was appointed trustee under said will. The original trustee settled with Pitts and turned over to him the trust property in his hands. The executor turned over to Pitts as trustee the remaining portion of the property due to the trustee under said will. All parties at interest were then citizens and residents of Polk county, Ga., and by proper proceedings the jurisdiction of the administration of the trust was removed from the courts of Massachusetts and vested in the courts of Polk county, Ga.; the superior court of that county having theretofore taken jurisdiction of said trust and by order directed the trustee to make his return to the ordinary of Polk county. The property of testator's estate was converted into cash and turned over to Pitts as trustee, and is now in his possession and control in the form of a small amount of cash on hand and loans on real estate located principally in Polk and Haralson counties, Ga., the principal amount of which is approximately $76,000. Under the terms of said will, petitioner is entitled to all the net income from the property in the hands of the trustee, and is also entitled to the final and absolute disposition of the principal thereof, and has the entire beneficial interest in the income and in the property itself. Petitioner is of age and competent to manage his own affairs. The trust created by his father's will is an executed trust, and he is entitled to possession and management of all the trust property. His wife and two twin children eight years of age are residents of Polk county, for whom no statutory guardian has been appointed. Petitioner has requested Pitts as trustee to deliver possession and control to him, but said trustee expresses doubts as to his legal rights and duties, and declines to do so. Pitts has given bond in the sum of $50,000 for the faithful performance of his duties as trustee, with the American Surety Company of New York as security, and he refuses to deliver the property to petitioner unless instructed to do so by a court of competent jurisdiction.
Petitioner prayed for process; that his wife and children be made parties defendant, served with process and with this petition; that a guardian ad litem be appointed to represent said minor children as well as the interests of any after-born children; that the court decree said trust executed and direct the trustee to deliver the trust property to him, decree the full and absolute ownership of the trust property, together with the right to control the same, to be in him; that the trustee be directed to transfer to him all evidence of indebtedness which represents any part of the trust property, together with the title to all real estate or other property that may be held by the trustee as security for the payment of said debt; and that the bond of the trustee be canceled, and that no liability arise under such bond on account of anything occurring subsequently to the final settlement of the trustee with petitioner. Service of the petition was acknowledged by the wife of petitioner and by the trustee. On August 4, 1919, the court by proper order appointed a guardian ad litem for the two minor children of petitioner, and further ordered that service of the petition, process, and such order be made upon said minors, and upon the guardian ad litem. The guardian ad litem accepted the appointment. Process was duly issued directed to Pitts, trustee, the wife, and said children, returnable to the August term, 1919, of Polk superior court. Service was not perfected in time for that term and an order was passed making the case returnable to the February term, 1920, and directing service of the petition and process. The minor children were personally served on September 9, 1919. The trustee and wife acknowledged service. The case was tried at the September term, 1920, of said court, and a verdict was rendered in favor of plaintiff. A decree was entered thereon, granting the relief prayed.
To the admission of the foregoing proceedings the defendant objected on the grounds: (1) That the evidence was immaterial; (2) that the defendant was not a party and not bound thereby; (3) that it was an effort to get in evidence said will as an exhibit attached to said proceedings, which could not be legally done; and (4) that there could be no legal judgment in said proceedings, because the guardian ad litem was appointed before the minors named in the petition were served, for which reason the court was without jurisdiction to entertain said proceedings as to them. The court overruled these objections and admitted said evidence. Error was assigned on this ruling.
(3) Plaintiff offered in evidence a proceeding in Polk superior court, brought by R. O. Pitts, C. H. Graves, and Rowena May Graves, filed November 18, 1916, in which it was alleged that E. C. Graves was the father of C. H. Graves; that E. C Graves died in Massachusetts in 1912 leaving a will which had been duly probated in the proper court of said state (the material parts of which are set out above); that George A. Graves, who was nominated in said will as trustee of the property therein bequeathed to C. H. Graves resigned said trust, which resignation was duly accepted, and that Pitts was, by the probate court for the county of Essex, Mass., appointed as trustee under the will of E. C. Graves and required to give bond in the sum of $50,000 for the faithful performance of said trust, which he did, and qualified as such trustee, and has ever since been acting as such; that the estate of testator going to ...
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