Wolfe v. Hines

• Citation: 20 S.E. 322,93 Ga. 329
• Parties: WOLFE v. HINES et al.
• Decision Date: 27 January 1894
• Court: Georgia Supreme Court

20 S.E. 322

93 Ga. 329

WOLFE v. HINES et al.

Supreme Court of Georgia

January 27, 1894

Syllabus by the Court.

1. Under the facts set out in the bill of exceptions, the presiding judge was under no disability to preside in the case.

2. The terms of a will made in 1855, conferring a power of sale being in this language: "I will that all my just debts be paid, and for this purpose I invest my executors with power, in their discretion, to sell such portion of my estate, real or personal, as may be deemed by them necessary for this purpose, either at public or private sale, as may be best for the interest of my estate,"--and one of the executors having renounced and failed to qualify, the other after qualification, could exercise the power alone. A conveyance of land by the executor, made in 1862, reciting the power, and "that it is for the interest of the estate *** to sell the property hereinafter described, in order to pay the debts of the same," passed title to the purchaser as against one claiming under the will as a general devisee of a contingent remainder.

3. In order for the purchaser to be affected by a fraudulent exercise of the power on the part of the executor, either participation in the fraud or notice of it by the purchaser would have to appear.

4. The evidence offered by the plaintiff, and excluded by the court even if admissible, does not affirmatively appear to this court as material, the same not going far enough to affect the purchaser with notice, and no intention to offer additional evidence as to notice being announced.

5. Treating the excluded evidence as admitted, a proper legal valuation of all the facts would necessarily result in the conclusion that, by reason of the sale and conveyance by the executrix, the plaintiff's right in remainder was cut off, and hence there was no error in directing a verdict for defendants.

Error from superior court, Bibb county; C. L. Bartlett, Judge.

Action in ejectment by Mrs. Estelle Wolfe against R. K. Hines and others. A verdict was directed for defendants, and plaintiff brings error. Affirmed.

A purchaser for value without notice of fraud in his vendor's title is protected.

The following is the official report:

Mrs Wolfe sued Hines, Mrs. Hines, and Hines, trustee for Mrs Hines and her children, in ejectment for the recovery of certain land. The action was brought December 31, 1888. The court directed a verdict for defendants, and, plaintiff's motion for a new trial being overruled, she excepted. The motion contained the general grounds that the verdict was contrary to law, evidence, etc. Also, because the presiding judge, Judge Bartlett, erred in ruling himself qualified to try the case, over the objection of plaintiff's counsel, because of the following facts: Plaintiff's counsel stated that the law firm of Dessau & Bartlett, of which Judge Bartlett had been a member, were counsel of defendants in the cases of Mrs. Wolfe v. Johnson et al., Mrs Wolfe v. Johnson et al., Mrs Wolfe v. Johnson and others, and Mrs. Wolfe v. Young et al., being action for ejectment in favor of plaintiff in the present suit now pending, and the property sued for being part of the same estate, and involving the construction of the same will, to wit, the will of Robert Freeman, as involved in the case at bar. Plaintiff urged this disqualification before the case was begun, and the judge overruled the objection. In a note to this ground, the judge below says: Before the judge decided to try the case, Mr. Dessau was sent for, and stated that Dessau & Bartlett had no connection with the case, had no interest in it, and had never had, nor been consulted about it, and that he did not know that any such case was pending; that this case was in no way connected with the cases defended by Dessau & Bartlett, and no issue involved in this case was involved in those cases. No question was made by the defense in the cases defended by him as to the powers of the executor, or the construction of the will of Robert Freeman. He also stated that Dessau & Bartlett had no interest in or connection with this case, directly or remotely, and never had. The judge stated, as a fact, that he had never had any connection with or knowledge of this case, and did not know such a case was pending until he saw it on the docket; that it was true that Dessau & Bartlett had defended certain cases for lands in suits brought by Mrs. Wolfe, but those cases had no connection with this, and no similarity, except that the plaintiff was the same, the defense being entirely different, and in no way depended on, and would not be affected by, the result in this. Plaintiff's counsel did not insist that this and the other cases were connected, or that Dessau & Bartlett ever had any connection with this case, and, when the case was set for trial, stated, when the question was asked, that the judge was not disqualified; that the case had no such connection with the other cases as would disqualify him; and that the defense to the cases defended by Dessau & Bartlett was entirely different from that set up in this. These facts were not denied by plaintiff's counsel, but admitted. "I desire to say that, if I had ever had the least connection with this case, or had the interest of my former clients been in the most remote degree affected by the result, I would have declined to preside in it. The dockets of the court are full of cases in which I am disqualified, and I find it exceedingly difficult to procure the services of other judges to dispose of the disqualified business, which the law makes it my imperative duty to have tried, and to refuse to preside in any case, to gratify the bare whim of counsel, would result in a denial of justice to the litigants in the court." Also, because the court erred in admitting in evidence, over plaintiff's objection, a deed from Mrs. Freeman, as executrix, to Anderson, dated June 12, 1862, upon the ground that the power of sale under the will of Robert Freeman was a power reposed in the joint discretion of the widow and Comer, who were joint executors; that the power was to be construed according to the law in force in 1865, the date of the will; that such power of sale under the will, without order of the court, could not be exercised singly by Mrs. Freeman, who alone qualified as executrix; that one executor could not, under the will, make a deed without order of court, and that no such order was shown; further, that plaintiff, not being a party to the deed or claiming under it, is not bound by any recitals of fact therein, and that the recitals of the deed as to the existence of debt are not binding on plaintiff, or evidence of the existence of such debts, against plaintiff; also, that the deed upon its face did not show that Mrs. Freeman, executrix, had power to make the sale for the purpose therein expressed, the recital not following the power created in the first item of the will, and it not appearing from such recitals that she sold the property for the sole purpose of paying debts of the...