Taylor v. Kemp

• Decision Date: 12 November 1890
• Parties: TAYLOR v. KEMP.
• Court: Georgia Supreme Court

12 S.E. 296

86 Ga. 181

TAYLOR v. KEMP.

Supreme Court of Georgia

November 12, 1890

Error from superior court, Scriven county; HINES, Judge.

W Hobby, Dell & Wade, for plaintiff in error.

T. H Potter, for defendant in error.

SIMMONS J.

In 1859, Alexander Kemp made his will, and appointed his wife and his son W. W. Kemp and another executors. The testator devised to his son William certain land to be delivered to him when and as soon as he should become 21 years of age, and not before. The executors were directed to permit his son to use the land, without charge for waste, so long as he should live, not subject, however, to his debts or contracts "nor to be rented even by him," but to use it as a home whenever he might think fit, "and after his death then share and share alike to his children; and, should any child or children of his be dead at the time of his death their issue to take the share such dead child or children would have taken had they been alive, in fee-simple." W. W. Kemp qualified as the sole executor of this will, and upon the death of his father went into possession of the land. In 1869, Kemp applied as trustee to the judge of the superior court for leave to sell this land, and to reinvest the proceeds in other land. Leave was granted by the judge, and he sold the land to Taylor, the defendant; but it does not appear whether the money arising from the sale was reinvested. Kemp died in January, 1888, leaving the plaintiffs, his children. Shortly after his death his children commenced suit against Taylor for the land. Upon the trial of the case, under the charge of the court, the jury returned a verdict in favor of the plaintiffs. The defendant made a motion for a new trial, which was overruled by the court. The fourth and fifth grounds of the motion complain that the court erred in striking the defendant's plea. The substance of the plea was that Taylor was a bona fide purchaser without notice of any defect in the title; and that, if the title of the plaintiffs be paramount, he should not be ejected until the plaintiffs had fully compensated him for the many permanent improvements he had put upon the land; setting forth in detail the improvements he had made, and alleging that, by reason of these improvements, the land had become enhanced in value at least $1,500; that the estate of W. W. Kemp was insolvent; and he prayed that he might have such equitable relief as the nature of the case required; and that, if his prescriptive title was not good, the land be sold under the decree of the court, and the funds realized distributed equitably between the plaintiffs and himself according to their respective right.

1. There was no error in striking this plea under the facts of the case. As we will presently show, W. W. Kemp had only a life-estate in this property, and that is all that Taylor purchased. He may have been mistaken as to the title which he obtained from Kemp and may have thought that he got a fee-simple title, but under the will it is clear to our minds that Kemp had only a life-estate, and could not sell more than that. Taylor, therefore, having purchased only the life-estate, was not entitled to be paid by these plaintiffs for any permanent improvements he had made upon the land except as a set-off against mesne profits; and the record shows that the plaintiffs abandoned their claim for mesne profits pending the trial, and the court thereupon dismissed these pleas. Taylor having no legal or equitable title to the land, and none but legal remedies being invoked against...