Kerr v. White

52 Ga. 362 | Ga. | 1874

McCay, Judge.

1. What is the relation of a trustee to the title to land conveyed to him by deed or will under our law? At common law he was unquestionably the owner of the land. The common law courts did not even recognize the uses for which, by the terms of the deed, he held it, but treated him as the owner of the land to all intents and purposes. Equity, it is true, compelled him to use the land for the purposes declared. But it nevertheless recognized his title — treated him as the legal owner, so far as this ownership was not inconsistent with the trusts declared in the deed. So long a,s the trustee conformed to the purposes declared he was recognized as having the title and ownership of the land. If it happened that the trustee was violating his trust — applying the land in violation of the terms on which he held, equity would interfere — take the trust into its own hands and appoint a trustee. The new trustee was an officer of the court, amenable to its process and subject to its direction. The title of the original trustee was divested, the property became assets in chancery, and the person who performed the duties of management for the benefit of the beneficiaries was an officer, appointee of the court of chancery. The wishes and intent of the original grantor were sacred until the grantee became unfaithful. The title remained where he left it, until by some breach of duty on the part of the owner of the legal estate, jurisdiction arose in chancery to appoint an officer of its own. To do this it was necessary that the title of the trustee should be divested, the assets fall into the hands of the court as equitable assets, and then, and not till then, did the court acquire the power to appoint an officer to act as trustee. The process of appointment was to appoint the new trustee, and then direct the old trustee to convey the title to the new trustee. Nor did the new trustee hold the same unlimited power, if by the deed there was such a power, as did the old : See Levin on Trusts, 246, 259, 710, 723. A trustee, therefore created by deed or will, has, by the principles of the common law of force in this state, a title to the property conveyed. He is not a mere officer of the court, as a guardian, an administrator, etc. He holds the title — the estate at common law — that is, by the rules of chancery as administered in England. A feme covert or an infant might be the grantee of an estate in trust, and even an alien might of personal property, though he could not of lands, for the reason that he could not hold the titles: Levin on Trusts, 30, 41. The question, therefore, is, was it competent for Mr. John Kerr to convey real estate by his will to Mr. White in trust for any person capable of being a cestui que trust ? True, both the grantor and grantee were non-residents of this state, but they were citizens of the United States, and they might, under the constitution of the United States, the one grant and the other be a grantee of property — real estate — in this state: Constitution United States, article 4, section 2, paragraph 1. If Mr. Kerr might own real estate here, he might convey it or devise it to Mr. White, in fee or in trust, provided he did it according to the laws of this state. That the deed or will has a trust attached does not alter the matter. Was the title complete to Mr. ■ White according to the laws of Georgia ? The law of Tennessee has nothing to do with it; they could not make it good if it was bad — they cannot make it bad if it be good. If, by our law, White takes without conditions, the law of Tennessee cannot impose a condition. The land passes according to our law, and this is the necessary incident to the sovereignty of the state over the land within its borders. The question, therefore, is whether, under our law, Mr. White is, under the will of Mr. Kerr, entitled to the title and possession of the land referred to, and that depends, as we have said, entirely on our law. To make out the case it is to be shown that the will is executed according to the laws of Georgia. This is admitted. Its probate in Tennessee makes it a good muniment of title in this state, under the constitution of the United States, providing for full faith to the judgments of the judicial proceedings of other states : 31 Georgia, 600. It appéars that the executor has assented to the bequest to Mr. White.- That he may do this would seem to follow from the decision in 31 Georgia, 600. If the will is a muniment of title, the grantee takes the property conveyed under it with the assent of the appointed executor. Were these creditors here, whose rights might be interfered with, and they were complaining, our courts would doubtless protect them, and not drive them to another jurisdiction for the payment of their debts. But they are not complaining, and it is not for the present complainants to look after the interest of such creditors, if any there be.

2. In the view we have taken of this case, suggested by the pithy and strong argument of Mr. Hull, we do not think it necessary to go into the meaning of the law of Tennessee. That, in our judgment, has nothing to do with it. This is Georgia land, and the title to it is to be regulated by our own law, and not by the law of Tennessee. Mr. White has the title under our law, and any condition imposed by the courts of Tennessee cannot affect it.

3. On the questions of fact involved in the refusal of the injunction, we see no abuse of the discretion of the court. There is something on both sides, but we incline to think the complainants’ case not a very strong one.

Judgment affirmed.