100 Ga. 607 | Ga. | 1897
On the 2d day of May, 1866, Margaret Stiles conveyed to Arcliy Jordan, as trustee, lot No. 34 in North Oglethorpe ward, in the City of Savannah, the same to be held in trust for Diana Jordan, wife of Archy Jordan, for life, and after her death, to such child or children as she might leave at tlie time of her death, share and share alike, with power to sell for reinvestment. This deed was recorded on May 2, 1866. During the lifetime of Archy Jordan, with the assent of Diana Jordan, he conveyed to D. X. Houston the eastern portion of this lot. Diana Jordan afterwards' died in possession of the western portion of the lot, which portion constitutes the premises now in dispute, and IT. X. Houston took out letters of administration upon her estate, and under and by virtue of his authority as administrator sold it to one Theus who, within a few days thereafter, re-conveyed the same to Houston, the adminstrator. The-deed to Theus was recorded on September 24th, 1884, and the deed from Theus to Houston was recorded on December 2d, 1884. On October 4th, 1884, and January 26th, 1885, respectively, Houston executed, in accordance with section 1969 of the Code of 1882, to the Merchants & Mechanics Xoan Association two deeds, with bonds to rerconvey, which deeds covered the entire lot No. 34, North Oglethorpe ward, Savannah, embracing the western half' thereof, which is now the premises in dispute; each of the bonds being for $1,000.00. Each of these deeds contained a reference to the deed from Margaret Stiles to Archy Jordan, trustee, conveying the same property, dated May 2d, 1866, and referred to these deeds as the origin of Houston’s title. To the March term, 1886, of Chatham superior' court, Diana Bryan-filed a bill against H. X. Houston, Thos. Theus and Margaret V. Stiles, in which she alleged, amongst other tilings, that she was the person who was' entitled in remainder under the deed from Margaret Stiles to Archy Jordan; and prayed that Houston be enjoined
1. The principal assignment of error upon which it was insisted that a judgment of reversal should be had, was that iu which error was assigned upon the admission in evidence by the presiding judge of the decree rendered in the suit which was instituted by Diana Bryan v. Houston, Thetis and another, in which it was declared that Diana Bryan, from whom the claimant derived his title, was the person entitled in remainder under the trust created in the execution of the deed from Margaret Stiles to Archy Jordan, trustee; and we shall therefore first address ourselves to a consideration of that question. We are fully pursuaded that the court, in admitting this decree, committed no error; and will endeavor to state the considerations which lead us to that conclusion. Under the trust raised by the deed in question, Diana Jordan took only a life-estate. The remainder interest passed to such child or children as she might have living at her death. There was no reference by name to any particular person as being entitled in remainder. The reference was to a class. Houston, as the administrator upon the estate of Diana Jordan, the life-tenant, assumed to seize and administer the fee as the property of her estate. The purpose of the bill was to fix the identity of the remainderman. The administrator upon the estate of the deceased life-tenant had, by virtue of her
2. Another reply to the claim of-the plaintiff in execution is, that the loan association, under whom he claims, took with actual notice of the existence of this remainder estate. It will be noted by reference to the record, that in each of the deeds under which it claims a lien upon the ■property, there was a reference in express terms to the original trust deed from Margaret Stiles to Archy Jordan as being the basis of Houston’s title to the premises which he undertook to convey to it. In this deed, which is one ■of the muniments of title under which the loan association ■claims its lien, the remainder estate was expressly created :and fully declared. It is the generally accepted doctrine, ‘“that a recital of one deed in another, binds the parties .and those who claim under them. Technically speaking, it operates as an estoppel, and binds parties and privies; privies in blood, privies in estate, and privies in law.” Carver v. Astor, 4 Peters, p. 82; Cruger v. Tucker, 69 Ga. 562; 39 Ga. 550; 40 Ga. 479; Penrose v. Griffith, 4 Binney (Penn.), 231, where it was held that “a deed containing recital of another deed, is evidence of the recited deed tagainst the grantor, and all persons claiming by title derived from him subsequently.” Therefore, inasmuch as an inspection of these muniments of title, under which the loan association took its lien, would have disclosed the existence of an outstanding estate in remainder in some person other than the grantor who undertook to convey to it in
3. It will be seen in the present case, that before the execution of the instrument under which it was sought to create’: the lien now being enforced, the life-estate was extin-' guished by the death of the life-tenant; and since Houston could convey no greater estate than the life-tenant had,., there was nothing to which the lien could attach, and therefore, in a contest between the holder of the alleged lien and', the person claiming under the tenant entitled in remainder,. the latter should prevail.
4. Ho error of law was committed upon the trial. The ■ verdict was fully supported, if not demanded, by the evidence.
Judgment affirmed.