Middlebrooks & Co. v. Ferguson

Cobb, P. J. 1. The case turns upon a single question, and that is, whether the deed from Mrs. Lumsden to Garmany was made in execution of the power of sale conferred upon her, as trustee, by the will of her husband, William O. Lumsden, and therefore conveyed to the grantee a fee-simple title to the entire interest in the lands described therein, or was merely her individual deed, conveying to the grantee only her individual interest in a life-estate in such lands. This is the only question argued here upon either side, though counsel for plaintiffs in error, in discussing it, as presented by the assignment of error upon the admission of the deed in -evidence, say that they do so, “without waiving their other assignments of error.” The contention of the plaintiffs in error is that the will created “a life-estate in the testator’s property, to be held and enjoyed by” Mrs. Lumsden “and the said children or grandchildren, as joint usees, for and during” her life, “with power in her to sell for the purpose of promoting the interests of the testator’s children or grandchildren, and only for this purpose, 'any portion of said estate;’” and that it “also created in the children or grandchildren a legal estate in remainder.” They further contend that the trust which the testator attempted to create became, relatively to Mrs. Lumsden, executed by the married woman’s act of 1866 and the legal title to an undivided one-sixth interest in the life-estate vested in her; and that she could convey her individual interest in the life-estate by her individual deed. They then contend, that, |is in the deed in question there is no reference to the will, to the power of sale therein conferred upon Mrs. Lumsden, or to the trust thereby created, this deed must be construed as simply her individual deed, and as conveying only her interest in the life-estate. In support of this contention, they cite the decisions of this court in Holder v. American Investment Co., 94 Ga. 641, and New England Mortgage Security Co. v. Buice, 98 Ga. 796. Those cases followed the general rule, expressed in Kent’s Commentaries in the following language: “The general rule of construction, both as to deeds and wills, is, that if there be an interest and power existing together in the same person over the same subject, and an act be done without a particular reference to the power, it will be applied to the interest [236] and not to the power. If there be any legal interest on which the deed can attach, it will not execute the power. If an act will work two ways, the one by an interest, and the other by a power, •and the act be indifferent, the law will attribute it to the interest and not to the authority.” 4 Kent’s Com. side pp. 234, 235. Whether, in view of these and other decisions of this court upon the subject, this rule must be rigidly applied in every case in which there is a power coupled with an interest, and in which the donee of the power executes a deed purporting to convey thé entire interest in the subject-matter of the power, without in any way referring to the power, we need not stop to consider. As shown by the brief of counsel for defendant in error, there are decisions rendered by courts in other jurisdictions, to the effect that in such a case the court, when construing the deed, may take into consideration the price paid by the grantee for the property,-whether it was the full value of the whole fee therein or not, the meagerness ■of the interest which the grantee would acquire if the deed should be construed to pass only the individual interest of the grantor, language in the deed clearly indicating the purpose of the grantor to convey the entire estate in the property, etc. There is' great force in the argument of counsel for defendant in error, that, as the •evidence shows that the consideration named in the deed was a fair .and full price for the whole interest in the lands described therein, ■and as they were all wild lands at the time of the conveyance and shown by the evidence to' be valuable only for the timber upon them, it would be “unreasonable -to conclude that it was Mrs. Lumsden’s intention to convey and Garmany’s intention to receive only an undivided one-sixth interest in this wild land for her life, when, in the condition in which the land was at that time, Garmany . . could not have used the properly for the purpose for which it was alone valuable, that is, for its timber.” But, in our opinion, we need not consider this argument, nor the outside’authorities cited to support it, nor need we consider the' argument drawn from the use of the words, “reversion and reversions, remainder and remainders,” in the granting clause of the deed. The general rule invoked by counsel for plaintiffs in error has no application to the present case, even when rigidly construed; for Mrs. Lumsden had no legal interest in the property, to convey by .her individual deed. The trust created by the will was executory. [237] It never became executed as to Mrs. Lumsden, nor during her life could it become executed as to the other eestuis que trust as they respectively became of age. All the eestuis que trust might become of age during the life of Mrs. Lumsden, and still the trust would not. become executed, but would remain executory. The trust estate was projected beyond the life of Mrs. Lumsden, provision being made that, at her death, such portion of the property as she had not disposed of, under the power conferred upon her, should be sold, and the proceeds thereof equally divided among the testator’s children; then in life and the child or children of such as might then be. dead, such child or children taking the portion which their ancestor, if living, would be entitled to receive. And for the purpose, of carrying out this provision as to the disposition of the property after the death of Mrs. Lumsden, the testator’s son, John William Lumsden, was appointed as her successor in the trust, “to take charge of, and to sell, dispose of, and convey such portion of the estate as [might] then remain on hand, at such time as he [might] think best, to promote” the interests of the eestuis que trust, “and to divide the proceeds thereof . .• among” them as directed by the will. Here was something for the succeeding trustee to do in execution of the trust. Upon the death of Mrs. Lumsden the duty would devolve upon him to ascertain among whom the proceeds of' the property remaining on hand should be distributed and the portion thereof to which each would be entitled, and to sell the property at such time as he might deem best for the interests of all concerned, and distribute the proceeds as directed by the testator.. Clearly the trust created by the will falls within the definition of' executory trusts given in our Civil Code. “In executory trusts, something remains to be done by the trustee, either to secure the property, to ascertain the objects of the trust, or to distribute according to a specified mode, or some other act, to do which requires him to retain the legal estate.” Civil Code, § 3156. Mrs. Lumsden had no separate legal interest in any of the property covered by the trust; she had only a usufructuary interest in the trust estate 'during her life. Thomas v. Crawford, 57 Ga. 211; Jennings v. Coleman, 59 Ga. 718; Bailie v. Carolina Interstate Building & Loan Assn., 100 Ga. 20; Smith v. McWhorter, 123 Ga. 287. As she had no legal interest in the property embraced in the deed under con [238] sideration, this deed would be a mere nullity, unless construed as an execution of the power conferred upon her by the will. 2. The rule is clear that the deed of the donee of a power of sale, purporting to convey land over which the power extends but not referring to the power or to the instrument creating it, will generally operate as an execution of the power, if the grantor had no interest in the property which he could convey by his individual deed. Terry v. Rodahan, 79 Ga. 278. This rule is especially applicable in a case like the present, where, although the power is not even indirectly referred to in the deed, there are expressions therein which clearly indicate an intention to convey the entire interest in the property in fee simple. The deed conveyed to Gar-many, the grantee, a fee-simple'title to the lands in question; and as the plaintiff showed that he had acquired whatever title Gar-many had,. and the evidence in other respects was sufficient to authorize the grant of the injunction prayed for, the court did not err in rendering the judgment complained of. Judgment affirmed. All the Justices concur, except Fish, O. J., absent.