163 Ga. 478 | Ga. | 1927
Grace S. Macy is the complainant in this case. Her maiden name was Grace Sanders. She married John H. Macy in 1894. There were born of that marriage two children, John H.- Macy III, and Elinor Macy. This husband died in 1903. Plaintiff married David H. Keefer in 1907, from whom she was divorced in 1916. Prior to October 31, 1912, plaintiff owned a piece of property in Connecticut, known as the Port Chester Place. On that day she deeded this property to her sister, Mary Sanders Hays, for the consideration of one dollar and other valuable considerations. This conveyance was made to defeat any claim which her then husband might have in this property upon her death. The sister held the title to this property for the plaintiff, and
Prior to August 31, 1914, plaintiff owned the premises known as 793 Piedmont Avenue, Atlanta, Georgia. She borrowed from Margaret B. Kemp, now Daman, the sum of $8,000, and to secure its payment she executed to the lender a mortgage on said premises. On said date plaintiff conveyed by deed said premises to William H. Hays, as trustee for her children above named, to hold the same until the youngest of them attained the age of 21 years. This conveyance was made “subject to the mortgage heretofore given to Margaret B. Kemp,” the mortgage so referred to being the security deed from plaintiff to said lender, sought to be canceled by plaintiff’s petition. Her said children became of age prior to October 14, 1918. On said date William H. Hays, as trustee, conveyed said property to said children. This conveyance was made “subject to a mortgage or loan deed of $8,000, given by” the plaintiff “to Mrs. Margaret B. Kemp, November 21, 1913.” On August 18, 1922, said children, in consideration of the sum of $20,000, conveyed by warranty deed said property to the plaintiff, subject to said loan of $8,000. In March, 1926, the children, by separate quitclaim deeds, conveyed said property to the plaintiff, “without reservation as to any loan, security deed, or mortgage.” On July 10, 1918, Margaret B. Daman sold and assigned to Mary Sanders Hays, trustee under said trust, the note given by plaintiff to her for said loan of $8,000, and by a quitclaim deed transferred to
It is insisted by counsel for the plaintiff that the effort to create the trust set up by the defendants was abortive, because the declaration of the trust does not meet the requirements of the statute of frauds, the same not having be.en signed by the plaintiff; and that in consequence the funds of the plaintiff were not impressed with a trust but remained her individual funds, and when used to pay off the loan due from her to Margaret B. Daman, such payment extinguished the lien of this security deed, and when the same was transferred to Mary S. Hays, trustee, the
It is next urged by counsel for the plaintiff that the evidence demanded a finding that her money paid the debt secured by the deed which she seeks in this proceeding to have canceled, and that the title of the grantee in this security deed passed out of her and into the plaintiff upon the payment of the debt thereby secured with the plaintiff’s money. We do not think that this position is well taken. It is true that the fund used by the trustee in purchasing the note of the plaintiff secured by this deed, and in acquiring the title thereby conveyed, was formerly the money of plaintiff. But before this was done these funds had become impressed with a trust. This was no longer the individual money of the plaintiff. By the declaration of trust, title to these funds had passed from the plaintiff into her sister, to be held for the purposes of the trust created by the instrument' hereinbefore dealt with. In fact this debt was not paid. The transaction was a' purchase of the note representing this debt, and the acquisition of
It is next insisted by the plaintiff that the only purpose of the .trust attempted to be created by Mary S. Hays in 1918 was to prevent plaintiff’s children from incumbering and wasting the Atlanta property which the mother had conveyed to William H. Hays in trust for them, and that this purpose was fully accomplished when the children afterwards, in 1922, conveyed said property to their mother, whereby the trust, as she contends, became thereupon wholly executed. The motive which prompts one to create a trust, and the purposes for which the trust is created, are entirely different. Conceding that the motive which prompted the plaintiff in creating this trust, and in authorizing the trustee to invest a portion of the trust funds in the incumbrance upon the Atlanta property, was to prevent the children from wasting and squandering this property, the purposes of the trust must be
Under the instrument creating this trust the income from the trust fund is to be paid to the plaintiff for life. Upon the death of the plaintiff the principal of the trust fund is to be paid to her children; and if either of her children should die before the death of the plaintiff, leaving issue, then the portion of said principal fund which said child would have been entitled to is to be paid over to such issue, per stirpes. In the event that either one of the children should depart this ■ life without issue, prior to the
But the proper decision of this case does not depend upon the question whether or not this instrument created an executory trust. Granting that it was an executed trust, the plaintiff does not make a case for cancellation. The conveyance of this property from the children to the mother, made in 1918, was expressly made subject to the mortgage or loan deed held by Mrs. Kemp. So clearly under this conveyance the plaintiff acquired no title to the interest or estate held by Mrs. Kemp under her deed to the Atlanta property. But it may be said that the children, in March, 1926, by quitclaim deeds, conveyed this property to the plaintiff, “without reservation as to any loan, security deed, or mortgage;” and that the effect of this conveyance was to put the title to the Atlanta property in the plaintiff, free from the security deed to Mrs. Kemp, which she seeks to have canceled in this proceeding. These conveyances did not avail the plaintiff and entitle her to cancellation of this security deed, for two reasons. One is, that, if the execution of these quitclaim deeds was necessary to give her a cause of action for the cancellation of this security deed, they were made pendente lite, and for this reason her cause of action had not accrued and become complete at the time she instituted this suit. It is a well-established rule that a plaintiff must recover upon facts as they existed at the time of the commencement of the action. Wadley v. Jones, 55 Ga. 329; Baker v. Tillman, 84 Ga. 401 (11 S. E. 355); Graham v. Williams, 114 Ga. 716, 718 (40 S. E. 790). The second reason is, that, granting that the effect of these quitclaim deeds was to vest in the plaintiff the interest of the children in the incumbrance upon the Atlanta property, they certainly could not convey to her the interest of others who were interested as beneficiaries under this trust, in the purchase of this incumbrance. We have seen that it is possible that neither of these children may have any interest in the principal of this trust fund
Plaintiff next insists that the sale and conveyance • of the Atlanta property by her children vested in her the full legal and equitable title to said property, because the title under the security deed merged in the title of plaintiff under said conveyance from the children, the security deed thereby becoming extinguished. From what has been said, this contention is not well taken. The estate created by the security deed never vested in toto in the plaintiff. If the plaintiff had acquired the entire estate created by the security deed, and the title to the property subject to said security deed, the former estate would have been merged into the greater estate. This was not the case, and no merger of the two estates took place.
In view of the rulings above, the court properly directed a verdict for the defendants.
Judgment affirmed.