Brown v. Tucker, 47 Ga. 485

Brown v. Tucker

47 Ga. 485 | Ga. | 1873

Montgomery, Judge.

In addition to the facts mentioned by tlm Reporter, the following is true: Cynthia O. Tucker died in 1862, leaving no children or representative of children her surviving; the deed from Lane to John S. Fleeman, as trustee, conveyed to John S. Fleeman alone, no mention being made in it of his representatives ; and at the time the judgment was obtained against the administrators of Fleeman by Lane, there was no longer any necessity for a continuance of the trust, except in so far as outstanding debts due by the trust estate may have constituted it a subsisting trust for their payment.

1. Either the land in controversy was, at the time of Lane’s suit, trust property, or it was not. If it was not, then Tucker owned it by virtue of the deed from Lane to Fleeman, as trustee for Mrs. Tucker, (Logan vs. Goodall, 42 Georgia, 114,) or as the owner, by virtue of the marital right, of his wife’s reversionary interest, after the trust estate- had been carved out of her share in her father’s estate. The purposes of the trust having ceased to exist by the death of Mrs. Tucker without children, this latter was probably the real status of the property, (if Tucker acquired it as heir to his wife, the result would be the same,) and Tucker held it divested of any trust except that creditors of the trust estate might possibly still treat it as a subsisting trust in his hands for the payment of their debts. And even this may be debatable, except as to Lane’s vendor’s lien. But assuming that the trust still existed, for all pur*491poses, who was the trustee ? Certainly not the administrators of the dead trustee. They are neither named in. the decree creating the trust, nor in the deed. If the trusteeship remained in the Fleeman line (so to speak) at all, it descended to his heirs, and if there was any eesüd que trust, it was Tucker. Neither Fleeman’s heirs, nor Tucker, were made parties to Lane’s suit to recover the balance of the purchase money. Here is the first fatal defect in Lane’s judgment, so far as it is sought to be maintained as a judgment against the trust property. Again, the execution fails to specify the trust property. It is, therefore, void, as an execution against that property: Wright vs. Watson, 30 Georgia, 648. And yet it is a necessary link in the plaintiff’s chain of title. Another fatal defect in Lane’s judgment, as against the trust estate, is, that the declaration fails to set forth the name of the only cestui que trust then living, assuming the trust still to have existed. The suit was against the administrators “ of John S. Fleeman, deceased, trustee for Cynthia C. Tucker,” long after the death of Mrs. Tucker. And yet hers is the only name mentioned in the declaration as a beneficiary under the trust.

2. Inclining, as we do, to the opinion that the legal title did not descend even to the heirs of Fleeman, (Logan vs. Goodall, 42 Georgia, 115,) we are very sure it did not to his legal representatives. Hence, as a suit to subject trust property, Lane’s action utterly fails to form a necessary link in plaintiff’s title. The chapter of the Code upon this subject is complied with in no essential particular. It follows that no legal sale of the trust property could take place under Lane’s judgment. It is said that Lane held the vendor’s lien, and that, inasmuch as the plaintiff paid that by his purchase at the sale, he is subrogated to Lane’s rights. Concede it, could Lane have brought ejectment and recovered on his vendor’s lien ? If the plaintiff has Lane’s lien, let him enforce it, as Lane must- have done. There may possibly be some defense to that lien, which, if the proper person were sued, could be successfully set up.

*4923. Section 2915 of the Code we think but an embodiment of the law, as it stood before the adoption of the Code. When one already has notice, where the necessity of repeating that notice to him? Patterson vs. Esterling, 27 Georgia, 205.

4. Proper diligence required the plantiff to seek the deed wanted as evidence in the hands of him who was the legal custodian of it, upon the death of the trustee. Tucker should have been notified to produce it.

Judgment affirmed.