The Cent. Ga. Bank v. Iverson

• Decision Date: 28 February 1884
• Citation: 73 Ga. 19
• Parties: The Central Georgia Bank. vs. Iverson, trustee, et al.
• Court: Georgia Supreme Court

73 Ga. 19

The Central Georgia Bank. vs. Iverson, trustee, et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

[Hall, Justice, being disqualified, Judge Clarke, of the Pataula circuit, was appointed to preside In his stead.]

Verdict. Equity. New Trial. Practice in Superior Court. Before Judge Simmons. Bibb Superior Court. April Term, 1883.

On September 22, 1877, the Central Georgia Bank filed its bill against B. V. Iverson, trustee for his wife and children, and against the cestuis que trust, alleging that, on January 23, 1871, the trustee, being indebted to Collins & Son, warehousemen, for money and advances made and expended for the benefit of the trust estate, gave them a warranty deed to certain land, as security for the debt, and took a bond to reconvey the same upon its payment on or before November 1, 1871; that this was done underauthority of an order granted at chambers by the chancellor, upon application by the trustee, and with the consent and approval of the wife and guardian ad litem of the minor, in which it was recited that the indebtedness was incurred for the benefit of the trust estate; that the time of payment was extended to January 1, 1873; that, in \'pursuance of this agreement, the trustee drew a draft on Collins & Son for the amount ascertained to be due; that they accepted it in the ordinary course of business, as was customary among warehousemen at that time; that they, being indebted to complainant, transferred the draft before due, and made complainant a deed to the land, and it took without notice of usury or any irregularity, that Collins & Son have since become insolvent. The object of the bill was to subject the trust estate.

The trustee and cestuis que trust answered the bill, admitting the granting of the petition, but attacking the sale as illegal, because the guardian ad litem of the minor was at the time counsel for Collins & Son; because the judge had no power in chambers to pass the order; because, without an order from a court of chancery, the trustee could not change the trust; because the facts stated in the petition were not true because the debt was not Mrs. Iver-son's debt, but her husband's; and because it was tainted with usury.

The jury found the following verdict on June 28.1878:

"We, the jury, find that fie trust estate is not liable for the debt; we also find that the debt was made by B. V. Iverson for his own-benefit, and that he is liable for $3,602.37."

No decree was entered.

On June 25, 1881, complainant filed the present bill, in the nature of a bill for review of the former decision, and to enforce its claim against the trust estate. The pleader styles it, in one of the amendments, as being " in the nature of a bill of review and revivor, and as a supplemental bill." It alleged that usury could not be pleaded without offering to pay principal and legal interest that defend-ants were estopped by their solemn admissions in judicio as to the liability of the trust estate, and could not deny it, and that no issue could be made or found to the contrary; and that the verdict did not cover the issues actually made.

By amendment, other grounds for review were set out, which were substantially as follows: That the debt was for the benefit of the trust estate, and this was not denied in the answer; that the original bill prayed for an accounting, and the answer admitted that some of the money was expended for the trust estate, but the verdict ignored this issue; that the verdict does not show on which plea it was rendered; that the verdict impliedly found the order of the chancellor void, while the answer impliedly admits that it was legally passed, and the deed under it was legally executed; that Mrs. Iverson, being of full age, was bound, irrespective of any order to sell; that the verdict found B. V. Iverson liable individually, though not a party. Other reasons were also alleged why the cestuis que trust were estopped by their acts and admissions from denying the claim, and why the verdict should be set aside, not necessary to be detailed The prayer was that the verdict be set aside, a new hearing be had, and the trust estate be subjected to the debt.

Defendant demurred to the bill, on the following grounds: Because there was no equity in it; because the matter was res ad judicata; because there was no error in the verdict, and it covered the issues; because no special leave to file the bill appears; because it was barred by the statute of limitations: and because a motion for new trial was the proper remedy. The amendment was demurred to as making a new bill of review barred by the statute of limitations.

The demurrer was sustained, and the bill dismissed, and complainants excepted.

Washington Dessau; Bacon & Rutherford, for plaintiff in error.

Lyon & Gresham, for defendants.

Clarke, Judge.

Benjamin V. Iverson, as trustee for his wife, Juliette, and for his minor son, James S., executed to Collins & Son a deed to certain realty of the trust estate. The deed, though absolute and for the fee simple on its face, was made to secure a large indebtedness of said trustee to the grantees. The latter executed an obligation to re-convey on payment of the debt. On petition of the trustee and the written consent of his wife, as well as of a guardian ad litem for said minor, the chancellor had, at chambers, passed an order allowing the transaction to be made, upon the ground that the debt was contracted for the benefit of the trust estate. Collins & Son having assigned the debt to plaintiff in error and conveyed the land to the same, as the accompanying security, the latter filed a bill against defendants in error to procure an enforcement of the...