Burton v. Black

32 Ga. 53 | Ga. | 1861

By the Court.

Jeítkins, J.,

delivering the opinion.

■ Two questions arise under this bill of exceptions.

1st. Is Benjamin Burton’s deed, of the 22d February, 1856, under which the claim of William T. Black et al. (set forth in their bill,) arises, binding upon Robert Burton ?

2d. If it be so, is this a case for interpleader ? If the first question be decided affirmatively, the judgment of the'Court below overruling the demurrer to the bill of Wm. T. Black et al. vs. Wm. A. Black et al. must be affirmed. It will then become necessary to examine the second question; if that be also determined affirmatively, the judgment of the Court enjoining the action of trover by Burton vs. Wm. A. Black, and the bill of Wm. T. Black et al. must likewise be affirmed. But if the first question be settled negatively, each of said judgments must be reversed.

Counsel for plaintiffs in error insist that Robert Burton is not bound by the deed of Benjamin Burton, because the latter had only a life estate in the property, and could not convey the remainder, which, by the will of Mi's. Eliza Smith, (the mother of both, from whom Benjamin derived title,) rested in Robert; and that all that Robert had said or done, to divest himself of this remainder or any portion of it, rested in parol, which was insufficient to execute an estate in remainder.

He cites Kirkpatrick vs. Davidson, 2 Geo. R., 301-2, and Maxwell vs. Harrison, 8th Geo. R., 61.

These cases do affirm the rule, that a remainder in chattels cannot be created by parol. In those cases, the remainders attempted to be set up, and disallowed by this Court, rested entirely in parol.

The case at bar depends upon a very different principle. There is no attempt made to set up, in Wm. T. Black and others, a parol gift in remainder. They claim under the deed of Benjamin Burton, above mentioned. The question for the plaintiff in error to meet, is not whether a parol gift of slaves in remainder after a life in being, made by him, is binding upon him. It is whether or not, under the facts of this case, he is bound by the deed of Benjamin Burton. The facts are that Robert Burton had, in the slaves in dispute, a contingent remainder, depending upon the death of Benjamin Burton, without children surviving him. Benjamin, upon his marriage, settled his interest in this property upon his wife, making Wra. A. Black the trustee. After this, and whilst still childless, he desired to have the trustee changed, with a view of enabling him to remove the property from the State of Georgia; which purpose we may presume the then trustee opposed. Before anything definite was done, the plaintiff In error, alarmed by the peril in which his contingent interest would be placed, by such change of trustee, and removal of the'property, opened a negotiation with Black, the trustee, the result of which was that Black bound himself to Robert Burton, to resist any change of trustee attempted, and to prevent, if possible, the removal of the property, and in consideration thereof, Robert Burton bound himself to Black, to convey to him, Black, one-half of the property in question, which might thereafter come to him, upon the death of Benjamin Burton. This agreement did not rest in parol. ■ Each party to it, executed and delivered to the other, a bond in the sum of $25,000, conditioned to be void, upon the performance by the obligor of his part of the agreement, as above stated.

Here, then, by an instrument in writing, under seal, with a sufficient consideration, the interest of Robert Burton in this property was materially changed. Black acquired a contingent, equitable interest, to the extent of one-half. Black complied, on his part, with the agreement. He retained the trust and prevented the property from being removed.

Still, however, the bad management of Benjamin Burton, his improvidence, and extravagance, and his great liability to be imposed upon by sharpers, rendered Robert Burton uneasy—apprehensive as to the security of his contingent interest. Again he approached Black, the trustee, and conferred with him as to the best mode of securing their prospective interest in the property, as well as for the purpose of making it more available for the support and maintenance of Benjamin Burton. The result of this second negotiation, also instituted by Eobert Burton, was an agreement, that with, the consent of Benjamin Burton, (if it could be procured) he, Benjamin Burton, should execute just such a deed as was subsequently executed, that Black should, in pursuance of it, take the actual possession, and the entire control of the property, preserve it from waste, and make it productive; and the bonds theretofore executed and delivered by Black .and Eobert Burton, the one to the other, should be re-delivered and canceled.

Accordingly upon their joint suggestion and advice, and whilst they both were present, and giving full assent to all that was done, Benjamin Burton executed the deed of 24th February, 1856, and it was then delivered to, and received by Eobert Burton for the purpose of being recorded. The bonds previously interchanged by and between Eobert Burton and Black, were at the same time, severally surrendered, each to the obligor therein. Black faithfully performed his trust, taking care of, and discreetly managing the property, until the death of Benjamin Burton, when this litigation ensued.

It would inadequately express the relation which the plaintiff in error bore to this transaction, to say that he stood by ’ and acquiesced in Benjamin Burton’s disposition of his contingent interest in remainder. He did more, he first conceived the act, then procured the consent to it of Black, whom he had previously made a party in interest ,• then, with the assistance of Black, he obtained the consent of Benjamin Burton, to carry into effect his will, touching the remainder in the property, and was present, participating in, (we may safely add) directing what was done, and finally received the deed for the avowed purpose of having it recorded. Again, he took an interest under the deed—still again, he received a valuable consideration from Black, viz : his obligation, upon a future contingency to convey one-half of this property to Black, was canceled and surrendered. He was, in this whole affair, the prime-mover, the controlling spirit. He willed, and he caused Benjamin Burton to execute his will. It was in fact, Eobert Burton signing and sealing, with the hand of Benjamin Burton. Having secured, by this arrangement, the cancellation, and surrender of his bond to Black, which was a valid and binding executory contract, shall he be permitted now to repudiate the settlement, and recover the whole of this property under the will of his mother ?

I have said that this case was governed by a different rule, than that under which counsel for plaintiff seeks to bring it. It is this, that a party who is not only present and acquiescing in the act, but for a valuable consideration, procuring another to convey his property, will be bound by the conveyance, as if it were his own act.

The cases of White et al. vs. Dinkins, 19 Geo. R., 286, and Wyche et al. vs. Green et al., 26 Geo. R., 416, neither of which has so strong a foundation, in fact fully sustain this ruling. This disposes of the first question.

As to the second question, whether in the bill of Wm. A. Black vs. Robert Burton, Wm. T. Black et al., a proper case for interpleader has been made, we think there is no difficulty.

The general doctrine is, that interpleader lies, “ where two or more persons claim the same thing, under different titles, or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the duty claimed, or to deliver the property claimed, is either molested by. an action or actions brought against him, or fears he may suffer injury, from the conflicting claims of the parties against' him. He therefore applies to a Court of Equity to protect him, not only from being compelled to pay or deliver the thing claimed, to both the claimants, but also from the vexation attending upon the suits, which are, or possibly may be instituted against him.” 2d Story’s Equity Jur. sec. 806.

The complainant in this case, claims no interest in the property. He avers, and verifies the averment, that he is in collusion with neither party claiming. Those parties claim by different titles—he knows not to whom he ought to deliver it—he fears that he may suffer injury from their conflicting titles—both parties are actually molesting him with separate suits, from the vexation and expense of which he seeks to be delivered.

Again, one of the titles is legal and the other equitable, which are now pressed against him, which is a sufficient foundation for the jurisdiction. 2d Story’s Equity Jur. sec. 808.

Such is precisely the case here. One of the parties is pursuing him at law under a title derived by the will of a stranger. The other is claiming the property by bill in equity, insisting that he holds the property as trustee, and that by one of the provisions of the trust deed, it is his duty to deliver the property, or a portion of it, to them. We entertain no doubt that it is a case for interpleader, and we therefore affirm the judgment of the Court below in each case.

Judgment affirmed.