122 Ga. 524 | Ga. | 1905
In December, 1853, Merrill Collier made and executed to his daughter, Nancy W. Cook, a deed conveying to her for life, and after her death to her children, a certain tract of land. The warranty was to her “during her natural life, then to her children,” and following this warranty, “and for the safe-keeping of the same, I hereby appoint D. A. Cook her lawful agent to do and act for her in and about said land; likewise for her children after her death.” D. A. Cook was the husband of Nancy W. Cook. In 1859 Cook and his wife applied to the superior court for an order to sell this property and reinvest the proceeds. The order was granted, and he sold the land. Neither the petition to the court nor the order to sell appears in the record, the only reference thereto being the statement that they were predicated upon the deed from Collier to Nancy W. Cook. We do not, therefore, know whether he applied in behalf of the children or not, but as he was authorized to sell, as trustee, and his petition was based upon the deed under which he was acting as trustee, the presumption is that he applied in behalf of all the cestuis que trust. He sold the land, it seems from the record, at a private sale to one Hightower, and took a mortgage to secure the payment of the purchase-money. Hightower failed to pay, the mortgage was foreclosed, execution issued and levied upon the land, and it was sold by the sheriff to Seaborn Crowley, under whom Johnson, the plaintiff in error, holds. Mrs. Cook, the life-tenant, died in 1900, and her children, the present defendants in error, commenced their action in ejectment to recover the land. On the trial of the case the judge held that the husband was not the trustee for the wife nor of her children, but only an agent, and when he sold the property he did not sell the children’s interest, but only the estate of the life-tenant. The case being submitted to the court without a jury, he found for the plaintiffs below and directed that a writ of possession issue. To this ruling and judgment the defendant excepted.
The next question which arises is, since Cook was appointed trustee, what quantity of interest did he take, i. e., was he trustee alone for the life-tenant, or was he trustee both for her and the remaindermen ? If he was trustee alone for thé life-tenant, then no act of his would bind the remaindermen. That was decided in Fleming v. Hughes, 99 Ga. 444. See also Luquire v. Lee, 121 Ga. 624. If he was trustee for both the life-tenant and the remaindermen, then the remaindermen were barred by his acts as well as the life-tenant. Cushman v. Coleman, 92 Ga. 772, and cit. In Fleming v. Hughes it was held that the trustee was appointed only for tbe life-tenant. A mere glance at the instrument creating the trust will show this to be true. In Cushman v. Coleman the trustee was not only appointed for the life-tenant, but for the remaindermen as well, as will be seen by reading tbe