Whiddon v. Whiddon

148 Ga. 255 | Ga. | 1918

Beck, P. J.

The defendant, E. D. Whiddon, plaintiff in error here, ..claimed that in the year 1887 he made with Mrs. Mary E. Henderson an agreement whereby she was to give him lot of land No. 164, the land in dispute, if he would move upon the lot, live with, her, and take care of her during her life. He did move upon the land and lived with her and took care of her during her life. There was a conflict in the evidence as to whether she gave him the land or whether she agreed that he might take charge of and have the profits of the land during her life; but he did not get from her any deed whatever. There was a conflict in the evidence as to whether the original deed made by Mrs. Mary E. Henderson to J. W. Whiddon and others was made for natural love and affection only, or whether it was made on a consideration of $100 in addition thereto. The evidence was also conflicting upon the question as to whether plaintiff in error had knowledge of this deed at the time he claims to have made his contract with Mrs. Henderson. There was no question, however, that as early as the year 1904 and prior to the death of Mrs. Henderson, which occurred about the year 1911 or 1912, E. D. Whiddon had knowledge of this deed.

1. We are of the opinion that the court properly directed a verdict for the plaintiffs in the case. The deed fro.m Mrs. Mary E. Henderson to certain named trustees, executed on the 29th day of August, 1885, as afterwards reformed, created a trust estate and placed the legal title to the property in question in the trustees. The Civil Code, § 3736, provides: “Trusts are either executed or executory. In the former, everything has been done by the trustee required to secure the property, or to render certain the interest of' the beneficiaries, and all that remains for him to' do is to preserve the property and execute the beneficial purposes. In executory trusts, something remains to be done by the trustee, either to secure the property, to ascertain the objects of the trust, or to distribute according to a specified mode, or some other act, to do which requires him to retain the legal estate.” And the next section provides: “In an executed trust for the benefit of a j>erson capable of talcing and managing property in his own right, the legal title is merged immediately into the equitable interest, and the perfect title vests in the beneficiary according to the terms and limitations of the trust.” The deed in question as reformed contemplated that there might be minor beneficiaries at the time of the death of the grantee and the division of the property; and it is within the purview of the statutes that trust estates may be created for the benefit of minors.' We do not think that the trust in this case could be declared to be executed until the happening of the event which would fix the status of those named as beneficiaries in the trust deed. If at the time of the death of Mrs. Henderson all those entitled to participate in the beneficial estate had been of age, a different question would have arisen; but the evidence shows that certain of the descendants of the brothers and sisters who were to participate as beneficiaries under the terms of the deed were not of age. In view of these facts, a trust was created and the legal title to the property was in the trustees. Turner v. Barber, 131 Ga. 444 (62 S. E. 587); Knorr v. Raymond, 73 Ga. 749, 769.

2. Conceding that the defendant in the case, E. D. Whiddon, entered into the contract as alleged by him with Mrs. Mary Henderson, to wit, that he would move upon the land in question and support her during her life, and that in consideration of this undertaking upon his part she gave or contracted to give him the property referred to, nevertheless, before the defendant, who now claims to have title to the property sued for, completed his contract—that is, before the death of Mrs. Henderson, certainly in the year 1904, he had knowledge of the conveyance to trustees in the deed dated August, 1885, as reformed in the suit instituted in 1904. We will not enter upon a discussion of the question as to whether or not one who has fully performed his part as purchaser in a parol contract for land, but has taken no written conveyance of title thereto, is a bona fide purchaser for value without notice; but we are of the opinion that E. D. Whiddon, who had knowledge of the conveyance by Mary Henderson to the trustees in the deed above referred to before he had completed his contract, although he intended to perform and was in the course of performance, could not be called a bona fide purchaser for value so as to maintain his title, then inchoate, as against a prior grantee of whose rights he had no notice at the time he began to perform the work and furnish the support which was the consideration for the promised gift. “To enable one to claim the right.s of a bona fide purchaser without notice, the title purchased must be apparently perfect, good at law, and made by a regular conveyance.” 39 Cye. 1690. “The rules respecting a purchaser without notice are framed for the protection of him who purchases a legal estate and pays the purchase-money without knowledge of an outstanding equity.They do not protect a person who acquires no semblance of title.”, Vattier v. Hinde, 7 Peters, 252, 271 (8 L. ed. 675). “The protection of such bona Me purchase is necessary only when the plaintiff has a prior equity; which can be barred or avoided only by the union of the legal title with an equity arising from the payment of the money and receiving the conveyance, without notice, and a clear conscience. In setting up a bona fide purchase without notice, by plea or answer, it must state the deed of purchase, the date, parties and contents, briefly; that the vendor was seized in fee, and in possession; the consideration must be stated, with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed; notice must be denied previous to and down to the time of paying the money and the delivery of the deed." Boone v. Chiles, 10 Peters, 177, 179 (9 L. ed. 388).

In order to defeat the legal title in the plaintiffs, it was necessary, under the pleadings in this case, for the defendant to show that he was a bona fide purchaser for value without notice. And where it appears that he had not paid the consideration but at most had only paid a part of the consideration before he received knowledge of the outstanding legal title, he could not occupy the position of an innocent purchaser for value, so as to entirely defeat the outstanding legal title. Whether under proper equitable pleadings he could have secured and have had the court to frame a decree which would have protected his interest, an interest proportionate to the part of the consideration which he had paid, need not be discussed, as he did not file equitable pleadings seeking to have such a decree framed and granted. He relied upon his contention that he was a bona fide purchaser for value and had title to the premises as such, and also that he had a prescriptive title based upon twenty years adverse possession. Under the evidence, the answer, in so far as it set .up prescriptive title, was not sustained; and the defendant was not in a position, under what we have ruled above, to assert that he had a legal title, or the equivalent thereof, a perfect equitable title upon which he could rely to defeat the legal title shown to have been in the plaintiffs.

Judgment affirmed.

All the Justices concur.