69 Ga. 832 | Ga. | 1883
The deed to the-plaintiffs in error was made in April, 1862, and after conveying the land to them in fee simple, contains the following.clause : “ Provided, that it shall be lawful for the legal guardian of said parties, they being all minors of tender years, to sell anddisppse of said lots
In February, 1863, Mrs. N. E. Thurmond, the mother, was appointed the. guardian of these minor children, and in August, 1866, conveyed the land in question to the defendant in error, receiving therefor another tract of land containing two hundred and two and a half acres. The parties exchanged possession, and have so continued since the ■year 1866. The defendant filed a special plea in which he averred that the power contained in the original deed ■to the plaintiffs in error, authorizing their guardian to sell and dispose of said lots or parcels of lands, or either of them, was ample and complete, whenever, in the discretion of such guardian, the same should be necessary for the support, maintenance and education of the said minors. He further averred that the deed to him was made by the said guardian in pursuance and execution of the power given in said deed, and in the execution thereof, she acted in good faith, and did that which, in her discretion, she believed necessary for the better support, maintenance and education of the plaintiffs; that the annual rents and profits of the land sued for were worth only $50.00, whilst those which she received were worth $.300.00, and furnished a suitable and comfortable home for the plaintiffs, and from the proceeds of which they have been educated and supported ever since ; and that he traded for the land in good faith with the guardian, after she had been legally anpl regularly appointed as such by the court of ordinary.
To this plea the plaintiffs demurred on the ground that the facts therein set forth constituted no legal defence to the action, which demurrer was overruled by the court, ^nd the plaintiffs excepted.
Do the facts set forth constitute a legal defence to the plaintiff’s action ? It is insisted that they do not, because the sale, was a private sale by a guardian of minors legally
Without reciting again the power given under the deed conveying the title of the land to the plaintiffs, it will be remembered that it was clearly and distinctly conferred upon the guardian without intimating the necessity of an order of the court of ordinary. Doubtless it was especially so conferred to avoid the expense and delay attending the granting of such an order. To sell the land of a ward, the guardian must have the authority to sell before he is allowed to do so. The grantor in this deed, when conveying the title to the minors, also conferred the power on the guardian to sell, whenever, in the discretion of such guardian, the same should be necessary for the support, maintenance and education of the wards, and not whenever the ordinary, in his discretion, should see fit to grant the power.
The guardian had the right to sell this land at private sale, the deed creating the power having been made before the adoption of the Code, even admitting that it was affected thereby. 38 Ga., 383; 62 Ib., 341.
The only possible relevancy that the testimony could have had to the case, would have been to show mala ftdes upon the part of the defendant, and there being nothing of that sort therein, there was no error in withdrawing it from the jury.
Judgment affirmed.