Lee v. Giles

EvaNs, J. (After stating the facts.) 1. The deed of trust from John A. Sloan to William Lee was made on January 7, 1863, and. was in all essential particulars identical, as to language and legal effect, with the trust deed which was construed by this court in Luquire v. Lee, 121 Ga. 624. The trust covered only the life-estate, and the trustee was not clothed with the title to the legal estate in remainder. As to this proposition counsel íot the respective parties entirely agree. The case hinges upon a determination of the question whether or not there was a valid execution of the power of sale conditionally conferred upon William Lee by the deed in which he Was named as trustee.' • It recited that the land therein described was thereby conveyed “with full power to said William Lee, with the consent of the said Nancy E. Lee, to sell said property and invest the proceeds in other property.” It did not provide in what manner or by what means the consent of Nancy E. Lee, if procured by the trustee, should be evidenced; it did.not even stipulate that her consent had to be in writing. Assent by her, rather than the mode in which she expressed her approval of a sale by the trustee, was the essential thing needed by him to put the power in execution; her assent was the substance, the form of its expression the mere shadow, of any authority which he could derive from her to exercise the eon498 ditional power conferred up.on him by the grantor. It was by no «means necessary that she should join with him in the execution of •any conveyance to the land which he should undertake to make under the power of sale. She might properly, by writing her approval of his act upon his deed, signify her assent to a sale. Dykes v. McVay, 67 Ga. 502. Or she could evidence her consent in other ways eqixally effective. Writing her assent to a sale for reinvestment upon a petition presented by the trustee to the judge of the superior court with a view to procuring judicial approval of a contemplated sale by the trustee would be altogether a proper mode of expressing her willingness to an exercise by him of the power with which he was clothed. Trammell v. Inman, 115 Ga. 878. That judicial approval was non-essential would not affect the question whether in point of fact the trustee had procured her consent before attempting to sell; though, in the interest of certainty and with a view to establishing a clear title of record, the plan adopted in the Ileaden case, 92 Ga. 223, of joining with the trustee in making the conveyance and indorsing upon it assent to and approval of the sale, is much to be commended. While William Lee did not, under the terms of the trust deed, acquire title to the legal estate in remainder, yet it can not seriously be doubted that the grantor contemplated, in the event of a sale for reinvestment, that the land itself should be sold, and not merely the life-estate therein or any estate less than the fee. Headen v. Quillian, 92 Ga. 222. We now reach the question whether the deed from Lee, trustee, to Anderson was, under the facts in the record, a good execution of the power conferred on the trustee by the Sloan deed. It will be borne in mind that Lee had no individual interest in the realty; as trustee he was merely the repository of the naked legal title to the life estate, with power to sell the whole property — -both the life estate and the estate in remainder,— conditional on the assent of his wife. As we have shown, the wife's written consent was indorsed on the application for leave to sell, which not only disclosed the intent and purpose of the trustee, as such, to sell the property, but also that the sale was to be made to the particular individual to whom the sale was actually made. The deed from Lee, trustee, to Anderson made no reference to the power of sale given to the former by the trust deed; but as Lee, the grantor, had no private interest in the land, his deed is to be construed as an execution of the power to [499] sell the land- over which the power extended. As was said by Bleckley, C. J., in Terry v. Rodahan, 79 Ga. 289: “Every purchaser of realty for value takes the risk of his vendor being clothed with power to sell at the time of the sale, and by the mode of sale adopted; but he is not bound to know from whence the power is derived, or whether it springs from ownership or by delegation in trust. It is enough that there be authority'to sell and convey when and how the sale is made, and the conveyance executed. If the vendor actually sell and convey, his intention to do so is manifested, and whether in his own mind he means to do it in one character or another the purchaser need not know nor inquire; provided only that the sale and conveyance be such as the vendor has a legal right to make.” No efficacy was imparted to the deed by the order of the chancellor, but that very order expressly recognized the power of the trustee under the trust deed to make the proposed sale. That he was without jurisdiction to decree a sale independently of this power residing in the trustee can not affect the question whether or not the trustee, acting either under the express approval of the chancellor or irrespective of the order passed by him, executed the power agreeably to the terms of the trust deed. To be a good execution of such a power, it is not essential that reference to the power be made in the conveyance, where the grantor has no interest in the land conveyed save that derived from the instrument creating the power. “If the grantor has no interest in the land, his deed will be insensible and a mere absurditjq if not intended as an execution' of the power; therefore it will be held to be an execution of the power, if it refers to the subject-matter of the power, or describes the land over which his power extends. It will be seen that this last conclusion is a presumption of law; this presumption may be more or less strong, according to all the circumstances of the case and the condition of the property. If all the words of a deed or will can have an effect given to them, and an operation upon property or rights, without being taken as the execution of a power, they will not be an execution of such power. If a man has several powers, and refers to some and not to others, the execution will exclude those not referred to. From these propositions it may be seen why a conveyance of specific property, or a specific devise of property, will generally operate as the execution of a power, if the grantor or testator has no other interest in the property but the power, al [500] though he malees no reference to the power in his deed or win.” 2 Perry on Trusts, § 511c, quoted in Terry v. Rodahan, supra. The various charges complained of were adjusted to the foregoing propositions, and were not. erroneous for any of the reasons assigned. 2. On the trial, counsel for the defendants tendered in evidence, collectively, the application of William W. Lee, as trustee, for leave to sell the land, upon which was indorsed Mrs. Nancy R.. Lee’s consent ; the order of the judge of the superior court, and the deed from Lee, trustee, to Anderson. Objection was made to this collective tender of several documents, and counsel for the plaintiffs invoked a ruling of the court that each document be severally offered. Whereupon the court remarked: “I will not treat them as separate instruments. I. can not do that.” Error is assigned upon this remark, which was made in the presence of the jury, and on the refusal of the court to require a separate tender of each document. Objection was further urged to the admissibility of the petition and order, because the land was not described and the order did not affect the estate in remainder; and objection was made to the deed being received in evidence, on the ground that no consent of Mrs. Lee to the sale of the land appeared from the deed, nor any authority on the part of the trustee to sell. These objections were overruled, and the various documents admitted in evidence. It appeared from the evidence that these papers were found among other papers of J. B. Giles, under whose will the defendants claimed as legatees, and that they had the appearance of being glued together at one time. It would have been more regular for the judge to require the separate tender of each of the writings, in order that opportunity for inspecting them and urging objection to each might be afforded the opposite party. But the different instruments were so correlated that all were necessary to establish the execution of the power of sale by Lee as trustee; and it seems that counsel for the defendants did make his objections to their introduction in evidence, and had each of these various objections passed on'by the court. Each of the papers was admissible in evidence if offered singly, and their simultaneous tender being only an irregularity, the ruling of the court was not such an error as will require a new trial of the case. The application for leave to sell did, in point of fact, set forth a description of the land therein referred to; and there was no merit in any of the other objections, as has been made to appear from the [501] discussion of the legal questions dealt with in the preceding division of this opinion. 3. Complaint is made that the court erred in allowing in evidence two deeds (one from Sarah M. Sheffield to Eeuben C. Wilder and the other from the heirs of Eeuben C. Wilder to Sarah J. Goodyear) purporting to convey an acre of land, and giving as the northern boundary the lands of J. B. Giles, under whom defendants claim title. The objection urged against the admission of these deeds was that they were irrelevant. The land conveyed by the Sloan deed jwas therein described as containing two and one half acres and having certain named boundaries. Prior to the execution of the conveyance to Anderson, under whom the defendants claim that their testator held, W. W. Lee, as trustee, had conveyed to Monroe L. Sheffield one acre of the land described in the Sloan deed. This deed was admitted in evidence without objection. It appeared that Sarah M. Sheffield was the widow of Monroe Sheffield, and that the land described in her conveyance was assigned to her as a year’s support and was the same land conveyed by W. W. Lee, trustee, to her husband. The deeds objected to were relevant. In that from Lee, trustee, to Anderson, the eastern and western boundaries were' confused; and the two deeds objected to (one of which was'executed by one of the plaintiffs), by the description of the land thereby conveyed, tended to identify the lot of land in dispute as the land described in the deed from Lee, the trustee, to Anderson. The evidence supports the verdict, and we see no error of law requiring the grant of a new trial. Judgment affirmed. All the Justices concur.