Ethridge v. Pitts

Fisjet, O. J. (After stating the foregoing facts.) 1. Section 1779 of the Civil Code, which went into effect on January 1, 1863, declared: “All sales of any portion of the property of the ward shall be made under the direction of the ordinary, and under the same rules and restrictions as are prescribed for sales by administrators of estates.” The same language was contained in the Codes of 1868, 1873, and 1882. The act of 1889 (Civil Code (1895), § 2545; (1910), § 3064), provides-that “By order, in term or vacation, of the judge of the superior court of the county of the guardian’s appointment, guardians may sell the whole or any part of the estate of their wards, for reinvestment,, upon such terms and at such time and place as said judge may order.” The following section provides for the publication of notice of the applicatión for sale, and that the application shall describe the property sought to be sold, the reasons for making the application, the property in which the guardian wishes to reinvest the proceeds of sale, etc. The next section is as follows: “ All other sales of any portion of the property of the ward shall be made under the direction of the ordinary, and under the same rules and restrictions as are prescribed for sales by administrators of estates.” Except for the word “ other ” in the first line, this is the same language as that contained in the Codes of 1863, 1873, and 1882, as above — 6 — noted. Administrators may sell lands of their intestates when necessary for the payment of debts or for distribution under an order of the ordinary, granted upon petition setting forth the reason for the application, and on publication of the prescribed notice; and all such sales, except of annual crops sent off to market, and of vacant lands, must be at public outcry and to the highest bidder. In view of these statutes, did the judge of the superior court, in 1869, have jurisdiction, while presiding over a session of the court, on a petition then presented by a life-tenant and the guardian of minors owning a legal remainder interest in land, to grant, during term, a decretal order for the sale of such' remainder by the guardian? The superior court has been the court of equity in this State at least since the judiciary act of 1799, and the language used in reference to it by the constitutions, as in that of 1868, has been that “the superior courts shall have exclusive jurisdiction in : equity cases.” In Beall v. Fox, 4 Ga. 404, it was said: “The act of 1784 adopted the laws of England, adapted to our circumstances. The act of 1799 conferred equity powers on the superior courts, necessary to give to those laws a complete and practical application, for the benefit of the citizens of this State, in as full and ample manner as the same existed in Great Britain, for the benefit of the subjects of that kingdom. We have not only adopted the laws of England suited to our circumstances, but we have created the necessary judicial machinery to give to those laws a practical and beneficial effect; and such we understand to be the office and duty of a court of equity, and such we understand to have been the object of the legislature, in 1799, in conferring equity powers on the superior courts.” In Jones v. Dougherty, 10 Ga. 281, it was said: “We have not only adopted the whole system of English jurisprudence, common law, and chancery, suited to our condition and circumstances, but we have framed the necessary judicial machinery to give to thaC system a practical and beneficial effect, and that such is the office and duty of a court of equity, and such was the object of -the legislature of 1799, in conferring equity powers upon the superior courts.” And in Mordecai v. Stewart, 37 Ga. 375, it was said: “ The equity jurisdiction was created by the act of 1799. (Cobb’s N. D. 467; sec. 53 of-the Judiciary Act.) It was a special grant, — 7 — and gave an exclusive jurisdiction. It authorized the superior courts to e exercise the powers of a court of equity 5 by such proceedings as were ‘ usual in such cases.5 . . c Generally equity jurisprudence embraces the same matters of jurisdiction and modes of remedy in. Georgia as was allowed and practiced in England.5 55 Civil Code of 1863, § 3033, lb. 1868, § 3045, and the language of this section is embodied in all subsequent civil codes. As was said by Justice Story, the origin of the jurisdiction in chancery over the persons and property of infants is quite obscure, and has been a matter of much juridical discussion. “ But whatever may be the true origin of the jurisdiction of the court of chancery over the persons and property of infants, it is now conceded on all sides to be firmly established, and beyond the reach of controversy. Indeed, it is a settled maxim that the King is the universal guardian to infants, and had, in the court of chancery, to take care of their fortunes.55 3 Story’s Eq. Jur. (14th ed.) §§ 1743, 1752. In 14 B. C. L. 269, § 43, it is said: “ But it is also within the inherent and comprehensive power of a court of general equity jurisdiction, according to the great current, of American decisions, to sell the land of infants lying within its jurisdiction when such sale, is necessary. .' . . The clearest case for the exercise of such a power is when the sale is necessary to procuré funds for the infant’s proper maintenance and education: and the weight of authority séems to be that it does nqt extend to sales merely because it appears to be for the general interest of the infant, though there is not lacking very respectable authority for the power to sell real estate when shown to be for the manifest interest of the minor. The jurisdiction does not spring from, nor is it dependent upon, the character of the estate, whether absolute or contingent, whether in possession, or the possession postponed until the happening of a future event. It rests upon the power and duty of the court to protect infants, to take care of and preserve their estates while under disability debarring them from the administration of property. The courts would be more reluctant to decree the sale of an estate in remainder, or of a contingent estate, lest it might operate a sacrifice of the interests of the infant; but the jurisdiction exists even as to such estates, though it may be more seldom and more sparingly exercised, and — 8 — it has been held that such a sale could be made though contingent interests were vested in persons whose residences and names were unknown, or even in possible children yet unborn.” See also 21 C. J. 121, § 99. Many cases are cited in support of the text quoted, and a few to the contrary of some portions thereof. Other text-writers, and many adjudicated cases might be cited to the same' effect. “ In general it may be said that in all the States having the complete equity S3stem, the original jurisdiction of chancery must be considered as remaining in full force and effect, notwithstanding the jurisdiction given to the probate courts, unless the constitutional or statutory provisions creating these, courts, by express, negative, prohibitory language, take away the former chancery jurisdiction, or unless by these statutes the probate jurisdiction is given in such affirmative and exclusive language as to raise necessary implication that it was the intention to displace the former corresponding chancery powers.” 21 C. J. 120, § 98, n. 63. Statutes abridging the jurisdiction of courts of equity-must be strictly construed. This court has decided a number of times that a judge of the superior court, at chambers, was without authority, prior to the act of 1889 (Civil Code of 1910, § 3064), upon a petition then presented, to order a sale of the legal estate of minors in realty, although it may be represented as beneficial to them. Webb v. Hicks, 117 Ga. 335 (43 S. E. 738), and cases cited; Morehead v. Allen, 131 Ga. 807 (63 S. E. 507), and cases cited; Powell v. Heyman, 143 Ga. 728 (85 S. E. 891). These decisions were evidently based mainly upon the grounds that chancery jurisdiction in this State was conferred upon the superior courts, not upon the judges thereof, and that the judges acting in vacation were not courts of equity (Milledge v. Bryan, 49 Ga. 397), because “ The judges of the superior courts of this State can do no act nor grant any decree in vacation unless it be authorized, by statute (Rogers v. Pace, 75 Ga. 436), and because “The power of a judge of the superior court to authorize, in vacation, a sale of the legal estate of a minor can be derived only from a statute (Mitchell v. Turner, 117 Ga. 958, 960, 44 S. E. 17). In Milledge v. Bryan, 49 Ga. 397, it was said: “The general rule was by application to the court of ordinary.” In Knapp v. Harris, 60 Ga. 398, 403, it was said: “ Equity may, in some cases, — 9 — interfere with the administration of the estates of deceased per-' sons, or direct the management and disposition of property belonging to minors;, but, generally, executors, administrators, and guardians are to resort to the court of ordinary for orders of sale, and such judgments as are necessary to supplement their general powers.” From these quotations it appears that the jurisdiction of a court of equity — the superior court — to order the sale of a minor’s property was not entirely taken away by the section of the Code authorizing ordinaries to exercise such power. In McCamy v. Higdon, 50 Ga. 629, it was held: “ A deed purporting upon its face to have been made by the guardian of a minor, under the authority of a decree of the superior court, is inadmissible in evidence without the production of said decree.” There is a clear implication that if the decree had accompanied the deed the instrument would be admissible; and further, that a decree of the superior court authorizing a guardian to sell his ward’s estate was valid. The decisions holding that the judge of the superior court had no power to grant an-order to a guardian to sell the legal estate of his ward all stressed the point that the judge had no power to grant such order in vacation, and on a petition presented in vaca! tion, thereby raising the strong implication that if the petition had been presented to the judge when he was presiding over a session of the court, and he had granted an order for such sale during term, it would have been valid. As was said in Richards v. East Tenn. &c. Ry. Co., 106 Ga. 614, 634 (33 S. E. 193, 45 L. R. A. 712), “As far as this court has ever gone is to declare that the chancellor has no power to grant, at chambers, an order for the sale of the legal estate-of minors.” It has never since gone further. There are several decisions of this court to the effect that by a decretal order of the superior court, granted during a session thereof, upon a petition to which the minors are parties, plaintiff or defendant, a guardian may be authorized to sell the lands of his minor ward, whether held by legal or by equitable title. Id Rakestraw v. Rakestraw, 70 Ga. 806, the will of the testator was probated in April, 1878. The widow wás named as executrix, and qualified. Certain realty was devised to the widow for life, with remainder to testator’s children. She filed a bill in her own — 10 — right, and as next friend of the six minor children of the testator, making his three adult children defendants, and alleging that the rents, issues, and profits of the land so devised were not sufficient for the support of herself and the minor children. The prayer was that she be allowed to sell such land or a portion thereof for the support of herself and the minor children. It was held (in 1883) that it was “competent for the life-tenant to waive the life-estate in the property devised; and this would vest the whole estate in the children; and it would be in the power of a court of equity to decree a sale of the whole or a part of the property for the support, education, and maintenance of the children, and the support of the widow. The court could hear evidence as to the probable value of the life-estate, and decree to the widow such sum as would be equal thereto, and could, by proper order protect the remainder for the use of the children, or decree that the same be turned over to the guardians of the minors and to those children who have become of age.” Also: “An amendment should be made specifically setting forth the property constituting the estate held by the widow, and stating her willingness to surrender her life-estate.” And “It seems to be the policy of the law to provide-for the support of the widow and minor children, and the court should in all proper ways forward and carry out this policy.” That was a clear-cut holding that a court of equity could grant an order for the sale of the legal estate of minors. In Sharp v. Findley, 71 Ga. 654, the executor of a will filed a petition, .to which legatees were parties, and minor legatees were represented by a guardian ad litem, praying for an order, at chambers, for the sale of the realty of such infants. Chief Justice Jackson in delivering the opinion (at page 665) said: “ The very minute this petition came before this chancellor and disclosed the fact that the land of infants was involved, his wards were before him, and the case was concerning ‘'an estate of the wards of chancery/ The case was made where these wards were suffering or likely to suffer; where their property must be changed, so as to realize for them the necessities of life; and it was necessary that his protective powers be exercised to make such decree as would relieve that necessity, and at the same time protect the estate by looking to the reinvestment and preserva — 11 — tion of the fund. Again, the ‘ proceedings ’ to ‘ be had therein ' are to be such ‘as the necessity of each case may demand/ Of that necessity he is the judge and the only judge. If the infant be not safe in his breast, where shall he look for help ? If chancery protect not its wards, what guardian, what law, can protect them ? I had rather confide an infant to the custody and care of an honest judge than to any jury ever sworn to' find facts and apply law.” In Mitchell v. Turner, 117 Ga. 958, it was said (at page 963, referring to the above quotation from Sharp v. Findley) : “ The language of the Chief Justice is manifestly sound as applied to applications filed in term, as were those in the McGowan and Richards cases, supra, and it was with reference to such applications that those cases approved the language used in Sharp v. Findley. The language, when applied to proceedings instituted in vacation, is opposed'to the rulings made in many cases, both before and after the Sharp case, and it has never been followed in a case where the proceedings were had and the order of sale granted at chambers.” Richards v. Fast Tenn. &c. Ry. Co., 106 Ga. 614, was an especially well-considered case, as will readily appear from a perusal of the majority opinion delivered by Justice Lewis, and the dissenting opinion by Chief Justice Simmons. As several rulings made by the majority in that case bear directly on and control questions involved in the case at bar, we quote the following head-notes from the majority opinion: ■ “ 1. The jurisdiction of equity over the estates of wards of chancery is broad, comprehensive, and plenary. “ 2. When one holds title to realty in trust for the benefit of a mother and her minor children during the life of the mother, but is not clothed with the title to the legal fee in remainder which vests in the children, he may apply -to a coiirt of equity for a sale of the entire property, including the legal as well a§ the equitable estate, the purpose of the application being for the benefit of the children as well as the mother. The moment such an ex parte petition comes before the chancellor and discloses the fact that tire legal as well as the equitable estate .of infants is involved, they become his wards, and the' case is one concerning ‘an estate of the wards of chancery/ and accordingly the chan — 12 — cellor has jurisdiction, to grant in term an order to sell the entire property, the minors being properly made parties and represented before him. “ 3. The petition of the trustee for the sale of the premises in dispute having been made and passed upon prior to the act of 1876, requiring personal service on minors, the appointment of a guardian ad litem for them, and his appearance and answer to the petition, were' sufficient to give the court jurisdiction of their rights. “4. Where such a trustee petitions for the sale of the entire property embraced in the conveyance to him, for the purpose of supplying the immediate necessities of all the beneficiaries, including the children, and of making permanent investments for their benefit, an order granted to sell .the property in accordance with the petition in effect directs an absolute sale of the entire estate, both legal and equitable. . . ' “ 5. Since the first code went into effect on the 1st of January, 1863, it has never been necessary, in order to give the chancellor jurisdiction to direct a sale of the legal and equitable estate of minors in the same property, that a regular proceeding in equity be instituted; but such a sale may be ordered by the judge without a jury, upon an ex parte petition, and at the term of the court when the petition is filed or presented. “ (a) In the absence of any legislative provision to the contrary, it would seem that equity has inherent jurisdiction to order a sale of the legal estate of minors for reinvestment, whenever to the minor’s interest. Be this as it may, the present case is distinguishable from one where the sole purpose is to sell such an estate for reinvestment. This is so because the petition for sale now under consideration involved equitable rights over which the su perior courts of this State clearly had jurisdiction. “6. Where such a petition had entered thereon ‘January adjourned term, 1871,’ and the order of sale had entered on it at the place of the judge’s signature, ‘January adjourned term, May 12th, 1871,’ and it appeared that the judge was actually on that day holding a regular session of such adjourned term, this was sufficient to authorize the presumption that the order in question was granted in open court, during its regular session in the transaction of term business, and was therefore a proceeding in term and — 13 — not at chambers. The facts, that the petition was not filed, that the case- was not entered on' the -regular docket of causes for trial, that no process was attached to the petition, and that the order of the sale directed a record of the proceedings on the minutes, as is usually the case when such orders are granted at chambers, were not sufficient to overcome this .presumption; especially in view of the principle that the court should adopt that construction which treats the order as completely legal, and not as partially illegal and to that extent void. " 7. Even if the proceedings to sell the property were defective" on account of the omissions to file the petition, attach process, and docket the case, these were mere irregularities which did nor render void the judgment of a court that had jurisdiction over the persons and subject-matter of the suit; especially where the interests of innocent purchasers are involved, with whose rights equity is always loath to interfere.” .In that case there was a trust estate for the joint use of a mother and her minor children during her life, with a legal remainder in fee to the children at the death of the mother. The main point' in the case, however, was as to the power of a judge of the superior court to grant in term, upon a petition then presented to him, a decretal order for the sale of the legal estate in remainder of wards; and the majority of the court held, in effect, that the judge had jurisdiction so to do. This construction was placed upon the ruling in the Richards case, in Reed v. Alabama etc. Iron Co., 107 Fed. 586 (Circuit Court N D. Georgia), wherein District Judge Newman delivered an able opinion, -the headnotes to which, so far as are here relevant, being as follows: "Under the law of Georgia, as settled by the decisions of its Supreme Court, a court of equity has inherent jurisdiction to order a sale of the legal estate of minors in real estate for reinvestment, where it is to the minor’s, interest, at least, when grounds exist, aside from the interest of the minors, which make it proper to invoke the jurisdiction of equity in the premises: . " 2. Where an estate in remainder in comparatively .unproductive property is vested in the children of the life-tenants who shall be living at the time of their death, and there are a number of such children in being, who are minors and in need of funds for their maintenance and education, a court of equity has the inherent — 14 — power, having before it the life-tenants and the remaindermen in esse, with their guardian ad litem, and on a proper showing, to render a decree for the sale of the property and the reinvestment of the proceeds so as to produce an income for the children; and such decree will bind children afterwards born, provided it has made proper provision for the investment and protection of their interests in the proceeds.” In line with the ruling covered in headnote 2, just'quoted, is a decision of this court in Cooney v. Wallon, 151 Ga. 195 (106 S. E. 167). There a testator died in March, 1913. The will devised certain realty to his wife for life, remainder in fee to his issue living at her death, and, if none, then to named persons. Included in the realty so devised was a city lot on which there were buildings in need of repair, and therefore could not be advantageously rented. The life-tenant brought suit against the only issue of the testator, an adult son, who was childless, and the contingent remaindermen named in the will, the purpose of the suit being to obtain a decree for the sale of the property, including every possible interest therein of contingent remaindermen in being or any possible future issue of the testator’s son, for reinvestment under the same limitations provided in the will. It was held that the court had jurisdiction of the parties and the subject-matter, and that the decree rendered authorizing the sale as prayed for was binding upon all parties to the suit, and upon any unborn issue of the son of the testator, who might be in life at the death of the life-tenant. The rulings in this case were followed in Donaldson v. Donaldson, 151 Ga. 208 (106 S. E. 272). In Palmer Brick Co. v. Woodward, 135 Ga. 450 (69 S. E. 827), this court construed the Ridiards case, 106 Ga. 614, as holding in effect that a judge of the superior court, on a petition presented during term by a guardian for the sale of his ward’s legal estate, had jurisdiction to grant, during a session of the court, a decretal order for the sale. In that ease Howell, in 1876, conveyed certain land to Woodward in trust for the sole and separate use of his wife “ during her life, and then to her children, if she should leave any, by her present or any future husband.” In 1896 an application 'addressed to the judge of Fulton superior court (the land tying in Fulton county), “ exercising jurisdiction in chancery therein,” was made by Woodward, calling himself trustee, — 15 — for an order to lease the property conveyed in the deed, for twenty years, to the Palmer Brick Company for it to use the clay in the land for making brick, and for other purposes. The life-tenant acknowledged service on the petition, and stated therein that she united with the petitioner in the application, and requested the court to grant the same. The minor remaindermen were served, and a guardian ad litem was appointed for them, who recommended the granting of the order, as it would be for the best interest of the beneficiaries. The order as prayed for was granted in term. It was, among other things, held: “the petition having been considered and passed upon in term time, the minors [represented by guardian ad litem] became wards of chancery, and the order granting the .application to lease the property was binding upon the defendant in error” (a remainder-man). “This is true although the deed may have created no valid trust and the remainder estate conveyed to the minors was a legal estate. . . The minors having duly been served and being represented by a guardian ad litem, who filed an answer in their behalf, and the proceedings being in term time and the minors having become wards of chancery, the absence of process did not vitiate the proceedings. . . The contract of lease made was authorized by the terms of the order. . . The court erred in granting an injunction restraining the plaintiff in error ‘from mining, digging, or removing any soil, dirt, or clay from the premises described in the petition.” It is clear that the' deed involved in that case did not create a valid trust for Mrs. Woodward, as it was executed in 1816, when she was sui juris under the act of 1866, and no trust could therefore be created for her. No attempt was made to create a trust for the remaindermen. The life-estate of Mrs. Woodward was a legal estate, as was the estate of the remaindermen. That decision is directly applicable to the case at bar. It was not founded upon the act of 1889, and could not have been based upon that act (Civil Code (1910), § 3064), because it was not a sale for reinvestment, but a lease the proceeds of- which were to be consumed in their use. The decision does not refer to that act. The fact that the-order of the judge of the superior court, granted during term, authorized a lease for twenty years of the land (in which the remaindermen had a legal estate), to be used for the mana — 16 — facture of brick, could not, of course, differentiate, on principle, sucb order from one authorizing a sale of the legal interest of the remaindermen in the land. While the remaindermen in that case, who had no general guardian, were represented by a guardian ad litem when the order for the lease was granted in term, there was no necessity for a guardian ad litem in the case at bar, wherein the order for the sale of the land was granted in term, for the reason that the minors were represented by the guardian duly appointed for their persons and property by the ordinary. In the cases we have cited in support of the doctrine that a judge of the superior court, on a petition presented Avhile he is presiding over a session of the court, by a guardian for the sale of the legal estate of his ward, has jurisdiction in term to grant an order for such, sale, — we say that in such cases, the orders for the sale so granted by the judge of the superior court were passed since the Civil Code of 1863, wherein first appeared the section that " all sales of any portion of the property of a ward shall be made under the direction of the ordinary, and -under the same rules and restrictions as are prescribed for sales by administrators of estates,” and, with the exception of the Woodward case, prior to the passage of the act of 1889, authorizing -judges of the superior court to grant, either in vacation or in term time, orders for the sale of a ward’s property for reinvestment. It clearly appears, therefore, that this court in none of the cases cited was of the opinion that the section of the code, as to ordinaries granting orders to guardians for the sale of the estate of their wards, deprived the superior courts, as courts of equity, of the jurisdiction to grant, during term, on petition then presented, decretal orders for the sale of the estates of wards, whether legal or equitable. Judge Powell in his excellent work "Actions for Land,” § 254, and at p. 320, says: " Minors are wards of chancery. The jurisdiction of equity -over the estates, both legal and equitable, of wards in chancery is broad, comprehensive, and plenary. The superior courts are the courts of equity in this State. Hence, by a decree of the superior court, granted during a session of the court, upon an equitable petition to which the minors are parties (plaintiff or defendant), a guardian may be authorized to sell the lands of his minor ward, whether held by legal or by equitable title.” ’ — 17 — There were controlling reasons why -the court of equity, and not the ordinary, had jurisdiction to' grant the order for the sale of the land involved in this case. The land, as we have seen, was devised to the widow for life, with remainder to her surviving child or children.- She and her children,, all of whom were minors of tender years, had practically no other property than their interest in the devised lands, which constituted a plantation of some 1600 acres, the tenements on which had been destroyed by Federal troops during the then recent war; and the fences thereon needed rebuilding, in order that the lands could be rented and the widow and children supported. The duly appointed guardian for the minors and their mother, the life-tenant, found a man, Newton Ethridge, who was able and willing to purchase the lot, 176, which was not contiguous to the balance of the plantation of some 1300 acres, but situated a mile therefrom, and to pay the full value of the entire interest therein — the life-estate of the widow and the remainder estate of her stirviving child or children. There was an actual necessity, in view of the circumstances, that the lands be put in condition to be rented, that money for the maintenance of the widow and children could be secured. She and' the guardian evidently believed -.it would be best for all interested in the lands that the entire interest in lot 176 be sold to Ethridge at private sale, for the prearranged price, the full' value of the entire interest. The ordinary did not have jurisdiction to grant an order for such a sale. The only power he had under the statute was to grant an order to the guardian to sell the legal estate in remainder of his wards in the land at public sale to the highest bidder, and .any prearranged agreement to sell to a particular person ~at a given sum would, if carried out, have rendered such sale voidable. Moreover, is it not clear that, at a public sale, to the highest bidder, of the legal estate alone of the remaindermen, it would, on account of the uncertainty of the life-estate, bring an uncertain and inadequate price? Such a sale would necessarily be speculative. As it happened, the widow, who owned a life-estate in lot 176, sold under order of the superior court, lived for about 44 years after the sale. Of course, she might have lived only a very short time. All of such uncertainty as to price was avoided by the widow and guardian uniting in an application to the court of equity for — 18 — leave to sell the entire interest in the land to a named person for its full value. Again, the jurisdiction to order the sale of the minors’ estate was improper for the ordinary, and proper for chancery, because the minors did not have a clear and fixed title, but a title affected by the chances of survivorship, and because there was a contingent remainder to unborn children. The devise was to the widow for life, and at her death to such child or children or representatives of any as might survive her. Under the devise any child or children of the life-tenant living at her death, or the descendant or descendants of such, would be entitled to share in the lands devised. One child was born in 1867, after the probate of the will, and survived the life-tenant; there might have been others. The ordinary did not have jurisdiction, upon the joint petition of the life-tenant and the guardian of the minor remaindermen then in life, to grant an-order of sale of lot 176 which would convey the contingent remainder of unborn children; but this court and others have decided that a court of equity could gram; a decretal order in a proper case to sell the contingent remainder of unborn children. Cooney v. Walton, 151 Ga. 195 (106 S. E. 167), and cases cited; Donaldson v. Donaldson, 151 Ga. 208 (106 S. E. 172); Reed v. Alabama &c. Iron Co., 107 Fed. 686, and cases cited. We have reached the conclusion from the foregoing that the trial judge erred, in view of the agreed statement of facts and the law applicable thereto, in holding that the order of sale involved in the case was not valid and that the several plaintiffs in the court below were entitled to recover. Judgment reversed. All the Justices concur.