Rosier v. Nichols

Evans, J. (After stating the facts.) The deed from Samuel Pearson to Patrick Doris, trustee, created a trust estate for the [24] life-tenant, which became immediately executed upon the delivery of the deed, and a legal estate in the remainder to the surviving children of the life-tenant. Tillman v. Banks, 116 Ga. 250; Stiles v. Cummings, 122 Ga. 635. The life-tenant was given the power of disposition by will in the event only there should be no child or children of the life-tenant, begotten by the grantor, in life at the death of the life-tenant. The life-estate was not changed by this power of appointment by will in the specified event, but it still remained an oestate for life, with power to devise by will in a certain contingency. No estate was conveyed to the trustee, but the deed did vest in the trustee a power to sell the entire property conveyed, upon the conditions annexed to the power. A power of sale may lawfully reside in one who has no legal or equitable interest in the property which is to be the subject-matter of the sale. Coleman v. Cabaniss, 121 Ga. 281, and cit. Such a power is simply collateral, and the person to whom the.power is given has no interest in the land; neither is any estate given to him. 4 Kent’s Com. *317. By this deed Doris was only the trustee of a power of sale exercisible by compliance with the prescribed terms. Heath v. Miller, 117 Ga. 857, and cit. Having construed the deed, it now becomes necessary to discuss whether, under the facts alleged in the petition, the power of sale had been extinguished when Talbert, trustee (who was the successor to Doris, trustee), attempted to exercise it by the conveyance to The Planters Loan and Savings Bank. Mrs. Pearson, the life-tenant, on the arrival at majority of her children,. conveyed to them “ all her right, title, and interest” in and to the laud described in the trust deed. By the same conveyance the land was partitioned between the remaindermen. The deed from Mrs. Pearson to her children divested her of the power of appointment of the estate by will in case the remaindermen died before she did. The life-tenant’s power of appointment of the estate by will was a power in gross. The alienation 'of- the life-estate by the life-tenant extinguished this power (4 Kent Com. *346), and the remaindermen were vested with the whole title. When the remaindermen became clothed with the life-estate, the merger of estates was complete, and they became the owners of the entire estate in fee simple. The power of sale given to the trustee could not be exercised after the union of the estate for life with the [25] remainder in fee. Wolley v. Jenkins, 23 Beav. 53. By parting with her life-estate Mrs. Pearson not only lost the power of disposition of the property by will, in the happening of the contingency named in the deed, but she also lost the power to authorize the trustee to sell the trust estate for reinvestment. Aside from the technical rules of construction, a deed should be construed to effectuate the grantor’s intention as expressed in the instrument. It is not conceivable that the grantor intended that his wife should affect to sell the land after she had parted with all title therein. There are no words in the conveyance restraining alienation by the wife of the estate granted to her. She was an adult when the deed was executed, and no trust could be created for her benefit. Her estate was a legal estate, with no inhibition against her disposing of the same according to her own free will. Courts must determine the legal effect of a conveyance, and the intention of the grantor must be taken in harmony with, and not in contravention of, the rules of law. Perhaps the grantor may not have contemplated a conveyance by the wife of her life-estate. Be it so, the clear import of the whole instrument was that the power of sale was to be exercised for the benefit of the wife with respect to her interest in the property, and the disposition -of her interest destroyed the grantor’s intent and extinguished the power. We therefore hold that the effect of the deed from the life-tenant to the remaindermen was to extinguish the power of sale of 'the trustee as expressed in the trust deed, and consequently no title passed to the bank by virtue of the deed from Talbert, trustee, to The Planters Loan and Savings Bank. The bank having no title to convey,its grantee,Rosier, had none; and it is of no concern to him whether or not the defendant was acting within the scope of his legal rights in advertising for sale under a power a part of the land which had been conveyed by one of the remainder-men to secure a loan of money. There was no error in refusing the injunction. Judgment affirmed. All the Justices concur, except Candler J., absent.