Logan v. Goodall

McCay, J. 1. By the express terms of the marriage settlement, the intended husband contracts with Lamar, that the property of the intended wife shall be free from his marital rights, and this not'only, as to the property she then had, but as to any property she might thereafter become entitled to, in any manner whatever. By the rules of common sense, by our Code, and by the common law, this, ipso facto, makes Lamar the trustee of this settlement. Here is a contract with him for the use and benefit of the intended wife: See Rev. Code, sec. 2279-2281. The whole scope and design of the parties was to clothe him with the legal right to protect the wife in the separate estate provided for her. Whatever estate it is necessary for the trustee to have in order to carry into effect this triparte contract, the law confers upon him: Code, sec. 2314. This was a mere naked trust, a confidence reposed. Ordinarily, the trustee is clothed with the legal estate, in terms, and his character, as trustee, grows out of the limitations placed upon his legal title. If he sell to one, with notice of the trust, or if he die, and the legal title pass to his heirs, in either case the trust follows the title. It is imposed by law upon the holder of the legal estate. The trust, or confidence of the grantor, is personal in the trustee and at his death, or upon his abuse of the trust, the Court of Chancery will appoint a new trustee and direct a conveyance of the title to him. The trusteeship of the heir of the trustee is not by virtue of the original appointment, but by virtue of his having the title, which the law couples with the same trust, as was attached to it, in the hands of his ancestor. In this case, there is no title conveyed to Lamar; he only takes such rights in, and power over the property, as is necessary to effect the objects of the settlement. At his death nothing [115] passed to his heirs, because,- the confidence did not pass, and it was only, by virtue of that confidence and for the purposes of conforming to it, that Lamar had anything in the property. Ye are inclined, too, to the opinion that, in general, in this State, it has never, at least for many years past, been considered, even when the legal title was expressly conferred upon the trustees, that the heir acquired any legal rights. The death of the trustee, has always been considered a termination of his interest, unless it was neceesary, for his own protection, that the interest should continue, as if he was in advance to the cestui que trust, etc. Be this as it may, Courts of Chancery have always in eases of express trusts, exercised the power of appointing a new trustee, on the death of the appointee, of the parties, unless the trust be, by the terms of the deed, continued; and, even then, if, for any cause, it become necessary, in order to carry out the object of the trust. Hill, on Trustees, 190-194. 2. Previously to the Code, which alters the law in this particular, (Rev. Code, sec. 2281,) it was necessary, in order to create a separate estate in the wife, that distinct words, to that effect, be used or that the nature of the conveyance must be such as to exclude the marital rights of the husband. The mere creation of a trust for the use of the wife, by a stranger, was not sufficient: 19th Georgia, 577; 35th Georgia, 190. 3. Under this rule, the lease to Lamar, for th'e use of Mrs. McLaughlin, was to the use of the husband. There was nothing in the deed to exclude his marital rights, and he had the same right to dispose of it, to one who knew nothing of the title but what appealed upon the face of the paper, as if the deed had been in terms to him. But, as is apparent from the recox’d in this case, the husband never sold more than the undivided one-half of this property. It is true, he made a deed to the firm of which [116] he was one of two members, of the whole lot; but that still left him the owner of one undivided half. The sale, by the sheriff, of the lot, as the property of White, could only pass White’s interest. 4. Nor could White himself, by his deed to anybody, pass more title than he himself had, to-wit, the one undivided half. So of all the deeds from White’s vendees; they could not, by their mere multiplication or diversity, add to the title of White. In other words, as appears from this record, one undivided half of the original lot, as leased to Lamar, is still, as to title, just where it was at the date of the deed to Lamar. This defendant has no interest in it; his chain of title does not cover it; nor, with any consent of the owner of it, has it ever been separated from the other half. Why should not the trustee recover? He stands, by appointment of the Court, in the shoes of Lamar. Even as trustee, under the terms of the deed, the tiile to one undivided half is in him. McLaughlin is not asserting his marital rights, under the deed. Why should not Logan, as trustee for Mrs. McLaughlin, answering as he does to the very terms of the lease, maintain ejectment in the title? When it is replied that, under the law as it stood then, the effect of this lease was to create a title in McLaughlin, the answer is conclusive that, as between McLaughlin and his wife, the marriage settlement is good, though not recorded, and that if this lease was paid for with money belonging to her, as her separate estate, he is estopped by his own deed from setting up his marital rights. We are not sure that even by the strict rules of the common law, the wife, or rather her trustee, would not, as against a stranger, have the right under such cireuinstances. But, under our Code, which allows a party, to go on at law, if he sees fit so to do, we think the right of Logan, as trustee for Mrs. McLaughlin, to maintain an action for the one undivided half is clear. [117] As to the undivided half sold to White, and by White, through various conveyances, to the defendants, White, if he had no notice of the truth, or the subsequent purchasers without notice, got a good title, they are presumed to have seen the deed to Lamar. Any lawyer would have told them that under that deed, as the law stood, McLaughlin had a right to sell. They were not bound to inquire further. They are innocent purchasers without notice, and no concealed equity, such as this unrecorded settlement, or the fact that the money of the wife paid for the lease, can be set up against them. We have been unable to see what the sheriff’s sale has to do with this matter — none of these parties claim under that. The fact that the whole lot was sold by the sheriff, as White’s, to Brown, and by Brown reconveyed to White, did not and could not add to the original interest of White. The purchasers from him took his title and nothing more; and this is true, even if McLaughlin had so acted, at the sale, as to mislead the bidders. When White became the purchaser from Brown, the sheriff’s sale becfme a mere episode, and the title in White was that he acquired under the deed of McLaughlin to the firm. But it would be carrying the doctrine of estoppel very far, to hold one estopped from setting up a title to property sold as the property of another, at sheriff’s sale, for the reason that he knew it was advertised to be so sold. There is no pretense that he was at the sale, or did anything to mislead the pui’chaser. We have not discussed the question, so elaborately argued by the counsel, as to the effect of the failure to record this marriage settlement, under the Act of 1845, upon subsequent purchasers of property, which had been sold by the husband previously to the passage of the Act, because this property came into the community, under the deed to Lamar. Prima facie, this gave the right to McLaughlin to sell. The purchasers had a right to buy, and the case presented is one [118] of setting up a concealed equity in order to avoid an apparent legal right. We do not decide the question we have alluded to. The argument for the plaintiff in error was very strong, but as the question is of great importance, and does not, as we think, arise in this case, under the view we have taken of it, we leave it for future consideration. 5. According to the view we have taken of this case, the plaintiff, as the record stands, is the owner of the one undided half of the land described in the lease to Lamar. A tenant in common may recover the whole from a stranger, or his undivided half from his cotenant, who is in adverse possession of the whole, or of any part of the whole: Rev. Code, 2283-2284. The effect of a verdict is not to disposess the cotenant, but to put both in possession of the whole. What equities there may be, between them, based upon improvements made ■ in good faith, and under a belief of a perfect title, or what equities there may be between the different purchasers, under the s eye ral deeds from White, we do not decide. But we singly say, that equity will not permit, injustice to be done, nor allow one tenant-in-common to get the benefit of improvements made, by his cotenant, under the honest belief that the title was wholly his. Judgment reversed.