Nort v. Healy Real Estate & Improvement Co.

Beck, J. (After stating the foregoing facts.) 1. Giving effect to the plain import of the language used by the grantor, Margaret Nort, in her deed of gift to Peter Nort, John Nort, and Charles Beerman, trustee for his minor children, so far as relates to the portion of the property conveyed to the grantor’s son, J ohn, the latter was given a one-third interest or portion, with remainder over, with a power to sell the fee. In the first part of the granting clause, after the use of apt words of gift and conveyance of the entire property embraced in the deed, and in the same sentence, the grantor employs language defining and limiting the interest of the grantees, as follows: “with the understanding herein [291] expressed that the interest hereby granted, bargained, given and conveyed, as aforesaid, shall be one third of said bargained premises as the interest of said Peter Nort, and one third to John Nort [the ancestor of the plaintiffs], and the remaining one-third interest to Charles Beerman, to be held by him in trust for said minor children, Margaret, Henry, and Mary Beerman; the aforesaid one-third interest of said lot conveyed to John Nort shall be during his natural life and after his death to his children; and if he should die without children, one half of his one-third interest shall go to his brother, Peter Nort, and the remaining one half of his interest to Margaret, Henry, and Mary Beerman. This shall not prevent the said John Nort from selling his portion of said city lot and use the interest of the proceeds thereof; but the corpus shall descend as heretofore stated.” Clearly, however inartiñcially it may be expressed, an intention of the donor to give a power to sell the one-third portion of the property conveyed to John Nort for life, with remainder over, is revealed in the language quoted. Hnless the provision, “This shall not prevent John Nort from selling his portion . . and use the interest of the proceeds thereof, but the corpus shall descend as heretofore stated,” is construed as giving to John Nort a power to sell the fee, this part of the deed is entirely idle and nugatory; for without authority from the grantor he would have had the right to sell and convey his life-estate, which is created by a preceding clause of the deed. By the use of the provision last quoted it is the manifest intention of the donor to create in the life-tenant a power not inherent in him as a tenant for life merely. And while the donor did not undertake to safeguard the corpus by the creation of a trust for its management and control, she did expressly stipulate that the corpus should descend “as heretofore stated,” that is, to the children of John Nort, giving to John Nort himself the right to use the interest of the proceeds of the sale of his portion of the lot of land conveyed by the grantor, Margaret Nort. The expression, “use the interest of the proceeds thereof,” is not only consonant with the construction we have placed upon the deed, rendering harmonious all of the provisions thereof, but it utterly contradicts the contention of the plaintiffs to the effect that John Nort took only a life-estate without a power of sale of the fee. The similarity in the language conferring authority upon John Nort to sell and upon Charles Beerman as trustee to sell the [292] “portion of his three children” for the purpose of dividing the proceeds among them may also be considered in aid of the construction which we have given to that part of the deed under consideration, if any further argument is necessary to make it conclusive. 2. Having decided that the deed from Margaret Nort conferred upon John Nort authority to sell the fee of his interest or portion of the land, we still have left open the other question, that is, as to whether John Nort exercised that power in the execution of his deed of conveyance to Charles Nort. If from the language of the latter deed, without the aid of extraneous circumstances, it can be gathered that it was the intention of the grantor to execute a power of sale and that his deed was made in execution of that power, then the court below properly sustained the demurrer of the defendant and dismissed plaintiffs’ action. In the case of Mahoney v. Manning, 133 Ga. 784 (66 S. E. 1082), it was said: ' “The principle enunciated in Sir Edward Clere’s case is said to be the technical rule, which is thus stated in 4 Kent’s Coin. § 234: '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 particular reference to the power, it will be applied to the interest and not to 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.’ ” Mr. Justice Evans, who delivered the opinion in the Mahoney case, referring to the contention of one of the parties to that case, that the strict technical rule obtains in this State, examined and discussed the prior cases decided in this court bearing upon that question; i. e., Terry v. Rodahan, 79 Ga. 278 (5 S. E. 38, 11 Am. St. R. 420), Lee v. Giles, 124 Ga. 494 (52 S. E. 806), Middlebrooks v. Ferguson, 126 Ga. 232 (55 S. E. 34), Clarke v. Land Company, 113 Ga. 22 (38 S. E. 323), Holder v. American Investment Co., 94 Ga. 640 (21 S. E. 897), and New England Mortgage Co. v. Buice, 98 Ga. 795 (26 S. E. 84); and as a part of the discussion said: “These are the only eases which directly bear upon the. subject we have in hand. In none of them was the rule we are following in this case rejected, but on the contrary, though recognizing its principle, its application was denied because neither of the instruments made any reference to the will which was the source of [293] title and conferred the power. This negative pregnant is especially significant when we consider the throes through which other courts have gone in an effort, at rationalization of the austere technical rule promulgated in Sir Edward Clere’s case. We take these cases to mean, if there had been a reference to the conveyance conferring the power, that such reference would evince an intention to execute the power, and would be so construed. So that we conceive the rule of law, as expressed in these cases, to be, that in order for an instrument to be effective as an execution of a power, where the maker is the owner of an interest in the land conveyed and also of a power to convey the fee, the recitals in the instrument must either expressly refer to the power, or by necessary implication clearly indicate that an execution of the power is intended.” See also the case of Mayo v. Harrison, 134 Ga. 736 (68 S. E. 497). In the present case, upon examination of the deed from John Nort to Charles Nort, there is a reference to the deed of Margaret Nort, which contains the power of sale, and in addition to this reference to the instrument conferring the power we find in the deed of John Nort clear indications that he exercised and intended to exercise the power of sale by executing the deed to Charles Nort.' In the first place, the deed of John Nort warrants the fee-simple title to Charles Nort, his heirs, executors, and administrators; and while this of itself would not bé a sufficient indication of his intent to exercise the power of sale conferred upon him, it is to be considered in connection with other indicia to be found in his deed of his exercise of the power. Eor in his deed it is recited that the grantor conveys “all and entire my one-third undivided interest in and to the land deeded to me . . by Margaret Nort, and described as follows: . . the other two-thirds interest in said land having been on the same day in the same deed conveyed by the said Margaret Nort to Peter Nort and Charles Beerman as trustee for. his minor children.” Now when it is remembered that 'the one-third interest in the land given to Peter Nort and the one-third interest given to Beerman as trustee were fee-simple interests, the reference in John Nort’s deed to his one-third interest as of the same quality as the interest of Peter Nort and Charles Beerman trustee, and the further plain indication that the entire interest in the land is made up of the three interests mentioned in the deed of John Nort, that is, the one-third interest .of the [294] grantor and the other two-thirds interest conveyed to Peter Nort and Charles Beerman as trustee, there is the clear indication that John Nort’s deed was an exercise of the power of sale conferred upon him by the deed of gift from his mother. So finding in the deed of John Nort plain indications of the grantor’s intention to execute the power of sale conferred upon him by the deed of Margaret Nort, as well as reference to the instrument conferring the power, we are of the opinion that the court below properly held that John Nort exercised and intended to exercise the power of sale conferred upon him, and that his intention is manifest from the instrument which was held to be an exercise of the power, and thin intention could be arrived at without resorting to extraneous circumstances, such as a comparison of the purchase-price of the property with its alleged value. 3. The court, upon review of the ease of Mahoney v. Manning, supra, declines to overrule the decision made in that case. Judgment affirmed. All the Justices concur.