182 Ga. 175 | Ga. | 1936
Lead Opinion
On December 10, 1928, W. J. Proctor executed and delivered to Wesleyan College a deed conveying certain described real estate in Muscogee County, Georgia, in -which is the recital: “W. J. Proctor hereby reserves the rents, issues, and profits and possessions from, in, and to land hereby conveyed for his natural life, but the title to all the real estate is hereby vested in said college eo instanti. A part of the consideration of this deed is the agreement on the part of Wesleyan College that it will pay to the brother of W. J. Proctor, said brother being J. B. Proctor of Meigs, Thomas County, Georgia, the sum of one hundred dollars per month from the rents, issues, and profits of said realty from the date of the death of W. J. Proctor to the date of the death of J. B. Proctor. And in accepting this deed said college hereby agrees to make such payment.” W. J. Proctor died on February 22, 1932, and Wesleyan College went into possession of the land under the deed referred to. On February 27, 1932, J. B. Proctor, for the stated consideration of one dollar and his love and affection for the children of his deceased brother, W. J. Proctor, executed a deed containing the following recital: “I hereby convey and quitclaim unto the children of my brother, W. J. Proctor, to wit, Ernest C. Proctor, George W. Proctor, Frank B. Proctor, and Henry S. Proctor, all of my equity, right, title, or interest in all of [the property referred to above], . . and all my rights are transferred and quitclaimed to the parties aforesaid; and while quitclaiming it all to them, I do not guarantee or warrant anything or any rights under said instruments whatever.” On October 7, 1932, Wesleyan College, for the stated consideration of one dollar “and in settlement of any and all obligations or responsibilities on the part of Wesleyan College to said J. B. Proctor, aforesaid, and the acceptance of said deed by the party of the first part,”
The judge, in rendering his opinion sustaining the general demurrers, said: <eWhere A deeds land to B, part of the consideration being a promise by B to A to pay an annuity to C, a stranger to the contract, suit may be maintained by A against B for failure to pay the annuity, but can not be maintained by C in his own name. C being an utter stranger to the contract, furnishing none of the consideration, and no trust being created for his benefit under the terms of the contract, he can not maintain a suit for the breach of the contract;” citing Shropshire v. Rainey, 150 Ga. 566, 574 (104 S. E. 414), and Code of 1933, § 3-108. The case before us presents this question: Where A conveys land to B, reserving in the deed the rents, issues, and profits to himself for life, and providing in the deed that after his death B shall pay to C for life one hundred dollars per month from the rents, issues, and profits from the land, can C enforce the provisions made for him in said deed? And if C can enforce the provisions made for him in the deed, can his assignee of these rents, issues, and profits maintain a suit against B and any grantee in a deed made by B conveying the land, to enforce and collect the annuity provided out of the rents, issues, and profits? In Story’s Equity Jurisprudence (3d ed.) 524, § 1244, in chapter 32 dealing with implied trusts, the author
In Dallas v. Heard, 32 Ga. 604, Lucinda Lane conveyed certain real and personal property to the defendants upon the consideration that they would pay her debts and pay her an annuity of $350 a year. A suit was brought by a creditor to enforce that provision. This court, after holding that the life-estate of Lucinda Lane in
In Featherstone v. Richardson, 68 Ga. 501, where the deed, after expressing a nominal consideration, also expressed the further consideration that the grantee was to pay off and discharge certain mortgages, it was held that “the deed conveyed the title in trust for the purpose of paying off the mortgages, and with the vesting of an absolute title, conditioned upon the grantee’s performance thereof.” An undertaking on the part of a mortgagee, in consideration of the execution and delivery to him by the mortgagor of a deed to the mortgaged property, to sell the same within a given time, and turn the proceeds, after making certain deductions, over to a named person, was held, in Lake v. Freer, 11 Ill. App. 576, to create a valid express trust in his favor. In Jones v. Lloyd, 117 Ill. 597 (7 N. E. 119), it was held that where one takes a conveyance of laird upon an agreement to support the grantor, and to convey a designated portion to the minor sons of the grantor who are to remain and work on the place, and the sons remain and work as agreed, he takes in trust for the sons as to the designated portion. In Blanchard v. Chapman, 22 Ill. App. 341, it was held that where one gives property absolutely, but with words suggesting or recommending that it be disposed of in favor of another, those words will create a trust where considered together they ought to be construed as imperative, the subject of the recommendation and the person to be benefited being certain. See McCreary v. Gewinner, 103 Ga. 528 (29 S. E. 960), where the decisions above referred to are cited approvingly. In Gordon v. Green, 10 Ga. 534, it was said: “It was agreed between A and B, that if B would undertake the management of A’s affairs and collect in certain funds due to her, that 'B should retain, out of the first money received on her account, the amount of $1,000, five hundred of which was to be' his then, and the remaining five hundred he was 'to retain and use
Some of the eases from which the foregoing quotations are taken and some of those cited may not be identical with the instant case on all the facts thereof, but they are substantially similar to the case we are now considering, and so similar that the rulings made and the reasons given for the rulings made are applicable to this case; and we are satisfied the principles announced are sound under our law. We are therefore reversing the ruling of the court below, sustaining the general demurrer to the petition/
Judgment reversed.
Dissenting Opinion
dissenting. The case presents the question: Where A conveys land to B, reserving in the deed the rents, profits,
But even assuming that J. B. Proctor had a right to bring an action under the contract, and that his assignees had the same
Is Mrs. Eedfern liable P It is argued in the brief of the plaintiffs that she “assumed the charge,” that such was the only consideration on which the property was conveyed to her by Wesleyan College. A copy of the deed from Wesleyan College to Mrs. Eedfern is attached to the petition, and an examination of the deed discloses that “This indenture is made in settlement of any and all obligations of responsibilities on the part of the party of the first part of the said J. B. Proctor, by reason of the provision in the deed of W. J. Proctor, aforesaid, and the acceptance of said deed by the party of the first part; this quitclaim being made to the party of the second part, the daughter of the said J. B. Proctor, at his special instance and request,” etc. In other words, the consideration was furnished by J. B. Proctor, to wit, his right to receive $100 per month from any rents and profits which Wesleyan College might receive from the land conveyed by W. J. Proctor. Evidently the daughter’s ownership of the land was of more concern to him than his expectancy of annuities from thq rents and profits, and Wesleyan College, for reasons satisfactory to itself, was willing to accept that consideration and deed the property to Mrs. Eedfern at J. B. Proctor’s “special instance and request.” It is apparent that in accepting the deed she does not promise to do anything or to assume any charge, and the deed negatives the claim of the plaintiffs that the consideration was one from her, to wit, that she assumed the charge of paying the $100 per month. The consideration from J. B. Proctor, that is, giving up his right to any sum that might become due from Wesleyan College, was a sufficient consideration to support the deed to his daughter, Mrs. Eedfern. No further consideration was necessary to the validity of the deed, and none was furnished by Mrs. Eedfern. Upon the execution and delivery of the deed the right of Proctor to any amount from the rents and profits was wiped out. This deed was executed on October 27, 1932, but the record shows that on February 27, 1932, J. B. Proctor had quitclaimed to the plaintiffs in error “all claims in my equity, right, title, or interest in all of said property [that conveyed by W. J. Proctor to Wesleyan College], and all claims in my name may be made in the names of said children for the cancellation of said deed to Wesleyan College
It is urged by the plaintiffs that as this paper had been recorded when Mrs. Redfern took the deed from Wesleyan- College, she was charged with notice of it, and can not avoid payment of the annuities to them. It should be held that the record did not constitute notice to Mrs. Redfern, and there was no allegation that she had actual notice. The deed does not convey an interest in land, but only in personalty. Such a recorded deed is not notice to a subsequent purchaser without actual notice. Furthermore, the instrument was recorded, not in the residence of the maker, but in Muscogee County, and for that reason it was not notice to Mrs. Redfern. Code of 1933, § 29-413. Again, the paper was a voluntary conveyance. While it is recited that “in consideration of $1.00 and love and affection,” etc., the interest was conveyed and quitclaimed to the nephews of J. B. Proctor, the nominal amount of one dollar does not necessarily make the conveyance other than voluntary. It is well settled that under such circumstances the intention of the parties may be ascertained, in determining whether or not a deed is a voluntary one. Martin v. White, 115 Ga. 866 (4) (42 S. E. 279); Pierce v. Bemis, 120 Ga. 536 (48 S. E. 128). The intention to make a gift without the payment of any money is, I think, evident from the concluding part of the instrument executed by J. B. Proctor, wherein it is recited: “I want my nephews to have everything that my brother tried to give or provide for me under the deed and will aforesaid, and I hope the authorities will give them all of my brother’s property.” So, even assuming that the instrument was a legal conveyance of whatever right J. B. Proctor had, Mrs. Redfern was not bound by it, and, under the agreement between J. B. Proctor and Wesleyan College, she took the property free from any obligation whatsoever. No responsibility rested upon her after she received the deed from Wesleyan College upon the consideration furnished by J. B. Proctor. It is, as to Mrs. Redfern, immaterial if Wesleyan College had actual notice of the quitclaim deed to the petitioners. “If one with notice shall sell to one without notice, the latter shall be protected.” Code of 1933, § 37-114.
Rehearing
ON MOTION TOR REHEARING.
It is insisted by the movants that no recovery could be had against Wesleyan College, because it does not appear that Wesleyan College has ever received any of the rents and profits from this land. In the view we take of the case, this fact is immaterial. The clause under consideration was in the nature of a covenant running with the land (Atlanta, Knoxville & Northern Railway Co. v. McKinney, 124 Ga. 929, supra), and by it the land itself was charged with the payment of $100 monthly from rents and profits. The proper interpretation is not simply that the rents and profits were charged, but that the land itself was burdened with the obligation to pay the stipulated amount from the rents .and profits. That is to say, the payments will be required so far as the rents and profits’ are sufficient, but not otherwise. The condition is whether the rents and profits are sufficient, and not whether such rents and profits have been received by the party sued. So far as they are sufficient for that purpose, the payments must be made. In Hitchcock v. Culver, supra, the deed expressly declared that there was no charge “upon the land itself.” Since under the deed involved in the instant case there was a charge upon the land itself, the grantee and its successors in title are subject to be sued in equity by the beneficiary or his assigns. Wesleyan College in accepting the deed specifically agreed to pay the amounts from the rents and profits, and could not relieve itself from this obligation merely by-conveying its rights to another, even though it did not afterwards, receive the rents and profits. But it is further contended that the petition was fatally defective for other reasons, and that its dismissal should be affirmed regardless of the reason given by the judge. It is insisted that the college made its conveyance to Mrs. Bedfern at the instance of J. B. Proctor, the original beneficiary, and in settlement of all obligation to him; and that, since this conveyance was made without any notice either to the college or to Mrs. Bedfern that J. B. Proctor had assigned his interest to these plaintiffs, there
Furthermore, in paragraph 6 of the petition, it was alleged that the conveyance and assignment to the plaintiffs was “immediately” recorded; and in paragraph 8, that “actual notice of said conveyance and assignment from J. B. Proctor to petitioners was immediately given to said college.” So much as to Wesleyan College. In paragraph 9 it was alleged as to Mrs. Bedfern, that “since she took with full notice of said equitable lien and charge in favor of petitioners, she took said land and holds the same subject to said charge and lien.” As against a mere general demurrer these averments were sufficient to allege that each of the defendants had actual notice of the plaintiffs’ rights at the time of the transaction between them and J. B. Proctor. Should it appear upon the trial that the assignment made to the plaintiffs by J. B. Proctor was in fact voluntary, and that neither defendant had actual notice of such assignment at the time of the subsequent transaction with J. B. Proctor, a different case might be presented.
Motion for rehearing denied.