56 Ga. 598 | Ga. | 1876
In 1861 a deed was made conveying certain land to a husband, in trust for the separate use of his wife and her children, born and to be born. Some years afterwards the husband, as trustee, conveyed the premises to a purchaser. In 1875 the wife; suing in her own behalf and as next friend of her minor children, brought suit against the purchaser to recover the premises, with mesne profits. The action was, in the brief statutory form authorized by the Code for the recovery of real estate, with the addition of a special averment to the effect that the trustee had abandoned his wife, and failed and refused to execute the trust, and closing with a prayer for general relief and for the appointment of another trustee. The case was tried and a verdict had for defendant. A motion for new trial was overruled.
1. There can be no doubt that the trust raised by the deed was executory, and that it would so remain while the coverture subsisted and the children were minors. It follows that there has been no vesting of the legal title in the beneficiaries, for the coverture is not at an end, nor have the children attained majority. It may be that more are yet to be born.
2, The sole title upon which the plaintiff relied for a recovery was this trust deed; but according to her own showing
3. The prayer for (he appointment of a new trustee could not aid her. Her husband, who was no party to the proceeding, was vitally interested in that question. No court could substitute another in his place as trustee, and divest whatever title he might have, without giving him an opportunity to be heard as a party.
4. No verdict could have been legally rendered other than the one that was rendered, and hence the motion for a new trial was overruled. It would be utterly useless to rule upon the grounds of the motion imputing error to the court in charging the jury, and in refusing to charge as requested, for what
3udgment affirmed.