Shacklett v. Ransom

McCay, Judge. 1. It is doubtless true, as was decided by this court in 3d Georgia, 383, and 11th Ibid., 1, that a.t common law the deed made by Ransom, as trustee, would, in its warranty clause, bind the maker of it personally; as he could not bind the trust estate, the law would charge him personally with the covenant. But by our act of 1853 this common law rule is changed, and it is provided that in deeds made by executors, administrators, trustees, etc., any warranty therein shall not bind the executor, trustee, etc., personally, unless it be plain from the deed itself that such was the intention of the parties. Some question, was made on the argument that this act does not, in terms, apply to trustees. But the title of the act so declares, and whilst it is true that the word trustees is left out at one place in the act, it recurs again in it in the latter clause. Taking the whole act together, it is plain to us that the intent was not only to change this common law rule but, in terms, to make the change apply to trustees as well as to executors, administrators and sheriffs. It is said again that the Code contains no declaration of this new rule as to trustees. B.ut we are of the opinion, that in construing the Code on this subject,- we are to remember that its- main object was to codify the law, and that all the old law is of force that is not inconsistent with the Code. There is nothing in the Code on the subject of trustees inconsistent with this act of 1853. ^The Code does not pretend to codify all rules of law of force in this'state as to trustees, and as this provision of the act of 1853 is not at all contrary to anything in .the Code, we see no reason for holding that the act of 1853 is not of full force as to trustees. At the last term, we held that the act of 1831, Cobb’s Digest, 531, authorizing a second sale by executors, administrators, sheriffs, etc., when a bidder at a first sale failed to comply, was still of force as to executors, administrators, etc., though in the Code the provision is only in terms applied to [354] sheriffs. This act of 1853 included all these legal trustees— express trustees. The Code treats these several subjects separately, and declares many of the duties of each in chapters devoted to each. But neither of these chapters purports to be exhaustive. A fair rule, in such a case,, is to treat the old law, whether statutory or whether common law, as still of force, unless inconsistent with the provisions of the Code. Under this rule of construction it follows that the act of 1853 is of force as to all the classes to which it applies. 2. But it is said that the act of 1853 only applies to deeds made by executors, under lawful sales. This is undoubtedly true. The question then arises, whether the sale under which this deed was made was a lawful sale. Section 2328 of the Code provides that trustees’ sales shall be at public sale, unless the authority for the sale otherwise provides. In this cáse there was a petition to the chancellor setting forth the nature of the trust and a statement that the sale was desirable; that the present plaintiff had offered $7,000 00 for the land; that this was a fair price, and asking leave to make the sale. The chancellor thereupon'passed the following order upon the petition: “Read and sanctioned. The petitioner is hereby authorized to sell the land and reinvest the proceeds,” etc. It is our judgment that this order, “read and sanctioned,” etc., in view of the facts set forth in the petition, and the prayer it contained, was an authority to sell to Shacklett at private sale for $7,000 00. In no other way could the prayer be attained. If the sale were at public sale to the highest bidder, the property might bring less. This court held, in the case of Maddox vs. Eberhart, 38 Georgia, 581, that under the wilf giving the executor power to sell or exchange the lands of the testator, the executor had power to sell at private sale, since, by the use of the word exchange, which could not be done at public sale, the power of private sale was included. It was contended in the argument that the sale was not a lawful one, because the trustee’s name was not signed to the petition. This was clearly a mere clerical error. It was in proof that the petition was made at his instance, and he acted upon it, [355] and be would be estopped from denying it. Eor. these reasons we affirm the judgment refusing a new trial. If these principles be true, the verdict is right. The defendant is not liable. 3. We do not affirm some of the rulings of the court at the trial. The parol evidence was only admissible on the ground of ambiguity in the deed. We do not think the deed ambiguous. True, the trustee does not say, in terms, that he is acting as trustee. But taking the deed altogether, no fair mind can fail to see that it was his intent to act as trustee. He describes himself “trustee of Mary Ransom,” and he so signs himself. Under our law, the form in which an ágent executes his authority is immaterial. It is enough if it plainly appears that it was the intent to act as agent: Code, section 2195. We do not agree with the judge in his ruling as to patent defects; that rule only applies to personal property. Nor do we believe a case or a dictum can be found applying it to patent defects in the title to either real or personal property. But as the defendant was, under the evidence, entitled to a verdict, on the ground that he was not liable personally on the warranty at all, we will not grant a new trial. These errors of the judge did the plaintiff no harm. Judgment affirmed.