McCrary v. Clements

Atkinson, Justice. 1. While the present plaintiff was yet a minor, his father purchased the premises in dispute, and caused ■them to be conveyed to himself as guardian of the plaintiff. As a matter of fact, he was neither a testamentary guardian of the plaintiff, nor the guardian of his property amder the statute. While he was the natural guardian of 779 the person of the plaintiff, he had never given bond so as to constitute himself a guardian of the property of the plaintiff’. Not being a guardian of the plaintiff' at all, the plaintiff’ himself being then an infant, in order to ■make the instrument operative, it is necessary to treat ■the conveyance as creating a trust, by means of which the legal title was vested in the parent and the beneficial interest in the minor son. By the terms of our code, ■ no formal words are necessary to create a trust estate, and whenever a manifest intention is exhibited that an- ■ other person shall have the benefit of the property conveyed, the grantee shall be declared a trustee. As we .have seen, this parent was in no sense, legally or tech- ■ nically speaking, a guardian of the plaintiff’s property. He did take the legal title. The beneficial interest was vested in the son. We think, therefore, that the effect ■ of the transaction was the creation of a trust and the :nomination of the parent to he the trustee. 2. It appears from the record in this case that, after •the execution of this deed to the father as guardian, the .son removed to the State of Florida and remained there ■ until after he attained his majority; that in 1884 the father conveyed this property to the persons under whom the present defendants acquired their title; that the persons to whom the father conveyed went into possession, .and, jointly with the present defendants, remained continuously in possession (the property being previous to that time unoccupied) until after more than seven years had elapsed from the time of their first entry; that the purchasers from the father had no actual notice of how he claimed the title or right of possession to the premises, though the deed to him as guardian was recorded in time; that the father’s death occurred after the majority of the sou, but before the institution of the suit. It will be observed, from this statement of facts, that the legal title to the premises in dispute (treating the con 780 veyance to the father as the creation of a trust, and this is necessary in order to give effect to it at all as conveying an interest to the son) resided until the majority of" the sou in the father, and he at any time might have brought an action of ejectment, in his character as trustee, to recover the premises conveyed by him. There-were no limitations over beyond the son, the present plaintiff, to be protected by the father in his capacity as trustee, and therefore the naked trust in favor of the minor squ was executed by the majority.of the latter. So that at all times from the date of the first entry of the lessors of the present defendants, there was some person representing the legal title to this estate who was competent to sue. Yet, nevertheless, the defendants and those under whom they claim, buying in good faith without actual notice of any equity in the plaintiff, were permitted to remain in the undisputed possession of the premises until' after the expiration of more than seven years from the date of their first entry to the institution of the suit. That prescription runs in favor of such a possessor is not now open to question. This court in Knorr v. Raymond, 73 Ga. 758, states the doctrine upon that subject to be: “It is conceded as the well settled law that time does run against the equitable estate of minors, if the legal estate reside in one-competent to assert their rights”; citing 8 Ga. 6; 51 Ga. 139; 55 Ga. 25; 61 Ga. 54; 65 Ga. 571; 66 Ga. 324; Ford et al. v. Cook et al., 73 Ga. 215. The trust being executed by the majority of the son, and he failing to sue within seven years from the first entry by the purchasers from the father, the defendants have acquired a good title by prescription. The judgment of the court therefore, confirming their prescriptive title, must be and is Affirmed.