131 Ga. 444 | Ga. | 1908
Eva A. Barber and others brought an equitable action against Mrs. Julia A. Turner and T. EL Barber, for the purpose of cancelling a deed executed by the latter, as their trustee, to the former, and obtaining an injunction against interference with their possession. On January 13, 1894, the grandmother of the plaintiffs executed to their father, T. EL Barber, a deed to the land in dispute, “in trust for the heirs. of his body.” At that time T. EL Barber had'three children living, all of whom were minors. In 1903 he applied to the judge of the superior court, alleging that by the deed the land had been conveyed to him in trust for the heirs of his body, that he then had three children living who at the date of the filing of the petition were respectively fifteen, twelve, and ten years of age, and that three other children were born to him after the making of such trust deed; “that by
It appears that the trustee for the children took a bond for title in his individual name from Dodge, by which the latter agreed to make a quitclaim deed to him as an individual upon the payment of fifty dollars cash and a hundred and fifty dollars in instalments. In connection with the making of the trust deed, Barber, in his individual name, transferred this bond to Turner, the husband of the grantee to whom the deed was made, and he testified that he assumed the indebtedness of Barber to' Dodge, and that he gave his purchase to his wife, though no transfer of the bond to her appears to have been made, nor was the balance ever paid to Dodge and a deed taken from him. It was contended that Barber, if he ever held as trustee for the children, ceased to do so upon taking this bond for title in his individual name, and held in his own right. There was ample evidence that he accepted the trust and held the property as trustee, and the deed to the defendant, Mrs. Turner, was an effort to convey the trust estate. If he had sought to claim that he ceased to hold as trustee but continued to hold as an individual under his bond, he could not have thus changed the nature of his holding so as to be adverse to the cestuis que trust. Civil Code, §3190; Freeman v. Brown, 115 Ga. 31, 32 (41 S. E. 385), and cit.; Bourquin v. Bourquin, 120 Ga. 115 (47 S. E. 639); Bridget v. Exchange Bank, 126 Ga. 821 (11), 833 (56 S. E. 97, 8 L. R. A. (N. S.) 463, 115 Am. St. R. 118).
We have not discussed each of the grounds of the motion for new trial in detail; but what has been said substantially disposes of them all. Upon a careful consideration of them, there, is nothing requiring a new trial.
Judgment affirmed.