67 Ga. 345 | Ga. | 1881
This was an action of ejectment brought by Mrs. Nancy H. Guill, for herself and as the next friend of her minor children, to recover a house and lot in the town of Sparta, which she on the fourth day of February, 1873, had conveyed to William J. Northern, the defendant below and the defendant in error here.
The deed by which she acquired title was from her husband, made in February, 1869, and recited that the property conveyed was for her sole and separate use during her life, and at her death to be divided between the children of Alexander Guill, the grantor; it being distinctly understood between the parties, that the property conveyed should be occupied, used and enjoyed by their children, as well as the grantee, during her lifetime for a home. It further recited that the said Alexander Guill, the grantor, authorized and empowered the said Nancy, at any time in her discretion to sell and convey the said property by deed, provided the proceeds of such sale were invested in other real estate for the uses expressed. Upon the foregoing statement of the recitals in the deed made to Nancy H*. Guill, arise the questions of law made by record, which are as to the power vested in the wife to sell and convey this property, and the duty, if any, of the purchaser to see to the application of the purchase money.
The only reasonable construction of which is, that he conveyed the property to his wife, to be used as a home for herself and her children during her life, with the privilege, if in her discretion she saw fit at any time to exchange it for another, she might do so, with the single limitation upon her right to sell, that the title to the other real estate should be subject to the same uses as that sold. The trust was in her, its execution was in her discretion alone, the proceeds to be re-invested in another home by /¿¿r, without a word indicating a duty upon the purchaser. Besides, the requirement is not that it shall be immediately re-invested, nor, when done, in any particular home, but in other real estate.
The doctrine as laid down by the English courts is, that where the objects of the trust are limited and defined, so that the trustee has no other, duty than to receive the money and immediately pay it over to one already designated and capable to receive it, the purchaser is bound to see it so paid, otherwise he is not. In this country this doctrine does not obtain except where there is fraud between the trustee and purchaser, the general rule being, that the purchaser who, in good faith, pays the purchase money, is not bound to look to its application. Green-leaf’s Cruise on Real Property, m. p., 455, note 1.
Chancellor Rutledge, in ruling a case precisely similar to the one at bar, as early as 1806, says that whatever may be the law of Great Britain on this subject, there are a variety of local circumstances which render it not only highly improper, but almost impracticable, that it shoüld be adopted in this country. Dessasure Eq. Rep. 355-
Story in his Eq. Ju., 2 vol., §1134, asserts that where
Under the authorities and the facts of this case, we cannot hold, that because the children were entitled to a home in the property before it was sold, that the land is chargeable therewith in the hands of the purchaser, nor that he was bound under the ample power of sale given to the grantee, to see to the application of the purchase money.
Judgment affirmed.