Wadley v. Jones

• Court: Supreme Court of Georgia
• Citation: 138 Ga. 223,75 S.E. 325
• Parties: WADLEY et al. v. JONES et al.
• Decision Date: 15 May 1912

75 S.E. 325
(138 Ga. 223)

WADLEY et al.
v.
JONES et al.

Supreme Court of Georgia.

May 15, 1912.

(Syllabus by the Court.)

Mortgages (§ 341^*) — Foreclosure under Power of Sale—Rights of Purchaser. Where under the powers conferred by a trust deed executed in 1854, as set out in the statement of facts and opinion in this case, the second trustee, with the written consent of the surviving cestui que trust, conveyed real estate to a purchaser thereof for value, held, that the power of sale conferred on the first trustee survived to the second trustee as such.

(a) The purchaser of the land in controversy, which was conveyed to him by the second trustee with the written consent of the surviving cestui que trust, obtained a fee-simple title to the land so conveyed.

(b) In such case the children of the cestuis que trust, on the death of the latter, took-no interest in the lands in controversy conveyed

[75 S.E. 326]

by the second trustee with the written consent of the surviving cestui que trust.

(c) The court erred in overruling the motion for a new trial in this case.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1039, 1041; Dec. Dig. § 341.^2-*]

Error from Superior Court, Jenkins County; B. T. Rawlings, Judge.

Action by Mattie A. Jones and others against W. M. Wadley, executor, and others. Judgment for plaintiffs, and defendants bring error. Reversed.

The petition, as amended, of Mattie A. Jones, James H. Anderson, and Howard Anderson, shows substantially the following: They are the surviving children of Susan J. Anderson, deceased, and bring their action against John Brady and others to recover a certain tract of land in Jenkins county containing 262 1/2 acres more or less. The defendants are tenants of W. M. Wadley, executor of the estate of W. O. Wadley, deceased, and rent and work said land as croppers of said Wadley, executor. Petitioners claim title to the land and mesne profits since June 1, 1907. Wadley, executor, claims title to said land from Augustus H. Anderson, the husband in his lifetime of Susan J. Anderson. Petitioners claim title as follows: (a) A marriage contract in 1854 between Augustus H. Anderson and his wife, Susan J. Anderson, conveying the land in trust for Susan J. Anderson for life, and at her death to petitioners, who are surviving children of said marriage and the remaindermen under the said deed of trust. (b) Death of Susan J. Anderson in 1907.

The material parts of said deed of trust are as follows: "Whereas the daughter of Col. Augustus H. Anderson, before and at the time of her intermarriage with Augustus H. Anderson, Jr., was possessor of and entitled unto a considerable estate both real and personal property derived unto her by and under the will of her grandmother Jane Jones, formerly of said county and state, deceased, to wit, to a tract of land situated, lying, and being in said county, which will be more particularly described by reference to the division of the estate of the said Jane Jones, deceased, aforesaid, and which is a part and parcel of a tract of land on which the said testator resided at the time of her death, and of the following negro slaves, viz., Rose, Washington, Charles, Everline, Kit, Wesley, Caty, Margurite, Sam, Abraham, and Littleton, together with the sum of ten thousand ($10,000) dollars in money, the artificial increase of the said property since the division as aforesaid under the will of said deceased; and whereas the said Augustus H. Anderson is desirous of securing unto his said wife and to the issue of said marriage the aforesaid property: Now this indenture made and executed this 21st day of Feb., A. D. 1854, for and in consideration of the premises and of the love and affection which he hath and doth bare unto his said wife Susan J. Anderson, and for the further consideration of the sum of ten thousand dollars which he acknowledges to have received at or before the sealing and of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, and by virtue of these presents doth grant, bargain and sell, upon the following trusts, uses, limitations, and conditions, unto the trustees hereinafter to be nominated and appointed, for the uses hereinafter set forth, the foregoing described land and negroes and the sum of eight thousand dollars to be hereinafter appropriated, viz., to the said trustee for the joint and separate use, maintenance, and support of the said Augustus H. Anderson and his wife Susan J. Anderson, for and during the term of their and each of their lives, and to the survivor of them during his or her life, the corpus or principal of said property not to be subject or liable to any debt heretofore contracted for or to hereafter be contracted for by the said Augustus H. Anderson or the said Susan J. Anderson; and it is further stipulated that the aforesaid sum of eight thousand ($8,000) dollars shall be vested in land, negroes, stock, or in such other property as the said Augustus H. Anderson and his said wife Susan shall consent and agree upon, which said property or stock when purchased shall be subject to all the uses, trusts, limitations, and conditions in this indenture set forth and declared. It is further stipulated that the said...