Satterfield v. Tate

Fish, C. J.

1. In the view we take of this case, it is necessary to adjudicate only a few of the questions raised in the record. In our opinion the demurrer should have been sustained. The first point we will consider is whether, under the allegations of the petition, there was a valid execution of the power of sale conferred by the will on the executor. As to this question some pertinent rules of law may be stated. The intent of the testator, as the donor of a power, governs. Mackay v. Moore, Dudley, 94, 96; Berrien v. Thomas, 65 Ga. 61 ; City Council of Augusta v. Radcliffe, 66 Ga. 469, 474 ; Taylor v. Atkyns, 1 Burr. 60, 121; Thorley v. Thorley, 10 East, 442, 443; Daly v. James, 8 Wheat. 535, 536 (5 L. ed. 670); 4 Kent’s Com. (12th ed.) 345. Consequently, a person claiming title under the execution of a power takes under the authority of that power (Ib.; Bradish v. Gibbs, 3 Johns. Ch. m. p. 550; Doolittle v. Lewis, 7 Ib. 48); for an act done under a power must have its validity from the grantor of the power, and not from the person that executes it. Ibid.; Middletown v. Crofts, 2 Atk. 662. In Sears v. Livermore, 17 Iowa, 297 ( 85 Am. D. 564 ), the same principles are thus stated: “The appellant takes under the execution of a power, and of course under its authority, just as if the power, and the instrument executing it, had been incorporated in the same deed. Her title rests upon the act creating the power, and takes effect as if created by the original deed. Marlborough v. Godolphin, 2 Ves. 78; Cook v. Duckerfield, *261 2 Atk. 562; Doolittle v. Lewis, 7 Johns. Ch. 45 ( 11 Am. D. 389 ). The authority to sell being derived from the power, if follows that the purchaser is bound to look for and to understand the extent of the power, or, as elsewhere expressed, ‘taking under the power, he is bound to see that its terms are complied with.’ Ormsby v. Tarascon, 3 Litt. 410 . And, of course in this, as in all other contracts, the object and design- of the parties should be kept strictly in view, in ascertaining the nature and extent of the power.” In Stevens v. Winship, 1 Pick. 318 ( 11 Am. D. 178 ), it was held: “Where a testator devised certain land to his wife for life, and gave her power, in case of need, to sell all his estate, real and personal, for her comfortable support, . . she took only a life-estate with a power of sale depending on a contingency. Those who claim under a contingent power of sale in a will must show that the power was well executed, and that the contingency happened; and it is for the jury to decide whether it happened or not.” In Griswold v. Perry, 7 Lans. (N. Y.) 98, it was held: “A purchaser of land from a trustee with power to convey only on the happening of an event, which is a condition precedent, must ascertain at his peril whether the condition has been fulfilled.” In Ervine’s Appeal, 16 Pa. 256 ( 55 Am. D. 499 ), it was held: “Power to sell, either in a will or deed, to be exercised on the happening of a particular' event, can not be lawfully exercised until that event happens.” On same line, see, Sweigart v. Frey, 8 S. & R. 297; Hall v. McLaughlan, 2 Bradf. 107 ; Loomis v. M’Clintock, 10 Watts, 274 ; South Carolina R. Co. v. Toomer, 9 Rich. Eq. (S. C.) 270; Carlyon v. Truscott, 20 L. R. (Eq. Cas.) 348. “Every purchaser of realty for valiie takes the risk of his vendor being clothed with power to sell at the time of the sale, and by the mode of sale adopted.” Terry v. Rodahaun, 79 Ga. 289 ( 5 S. E. 38 , 11 Am. St. R. 420 ). In the case at bar, it appears, that item 4 of the testator’s will directs the executor to hold the lands described in item 3 during the life of Lina Griffeth, but with the exclusive possession and control thereof in Lina and Amanda, as a home for them, they to rent the land and receive and enjoy the profits thereof; and that the executor should sell only such portion of said lands as might become necessary for some cause unforeseen to the testator, upon the consent of Lina and Amanda. The power was thus given to the executor alone, and to *262 be exercised by him only on the happening of a particular event, that is, some unforeseen cause rendering a sale necessary, and then to sell only such portion of the land as should be necessary, upon the consent of Lina and Amanda. There was no allegation oí suggestion in the petition that anything had occurred rendering-the sale of the land, or any portion thereof, necessary. Indeed it may be fairly inferred from the' petition and its exhibits that no necessity for a sale had arisen. It was made about fourteen years-after the testator’s death, and presumably there were no debts of the testator then existing to be paid; besides, it appears that the purchase-money was paid, not to the executor, but to Lina and Amanda. And as Lina had no child except Amanda, and the-latter had no children, it would be reasonable to presume, considering the amount of other property devised and bequeathed to them in the will, and their station in life and probable needs, they being negroes, that the sale of the two lots of land in question, 320 acres, all at one time, was not necessary for their support and maintenance. But be this as it may, no'necessity for a sale appears, from the petition. In the present case we need not go to the full extent of some of the rulings abo-^e referred to; for it is apparent from the allegations of the petition that the petitioner had knowledge of the condition upon which the executor was authorized by the will to exercise the power to sell the land. Petitioner'alleges that he entered into a parol agreement with the executor as such for the purchase of the land, which agreement wa*s consented to- and concurred in by Lina and Amanda, and that the deed made to him by Lina and Amanda was executed at the instance and direction of the executor in fulfillment of such parol purchase, and the deed was intended to convey the fee-simple title to the land, “and was believed by all said parties to be effectual so to do under the provisions of said will.” (Our underscoring.) Clearly these allegations are equivalent to acknowledging and affirming that the petitioner, as well as the executor and Lina and Amanda, knew of the provisions of the will, of the particular power of sale therein conferred upon the executor alone, and that petitioner purchased the lands in question in view of this provision of the will. The-only agreement to sell entered into by the executor was in parol. Even his request and direction to Lina and Amanda to execute the-deed to petitioner was merely verbal. The deed so executed was. *263 simply a warranty deed m the usual form, and purported to oe a conveyance by Lina and Amanda Griffeth of the fee-simple title to the land in question to the petitioner, in consideration of $1,250 paid by him to them. There was no reference therein to the executor’s power to sell, nor even any reference to the executor or to the will wherein this power was conferred upon him. While it has been held that a court of equity will aid the defective execution of a power, when the defect relates to matter of form, in the execution, it has never been ruled, so far as we are informed, that it will render its aid where the execution of a power is not merely defective in form but invalid by reason of the fact that the contingency upon which the power was to be exercised has never happened. See 2 Pom. Eq. Jut. (3d ed.) §590; 22 Am. & Eng. Ene. L. 1130; Cockerill 1. Cholmeléy, 1 Buss. & M. 418.

2. What title was devised' by the will of Stephen Griffeth to Lina and Amanda Griffeth, whose deed of bargain and sale is held by the defendant in error? The third and fourth items of the testator’s will, which must be read and construed together, gave a joint life-estate, for the life of Lina, to Lina and Amanda, with a vested remainder to Amanda at Lina’s death. This vested remainder to Amanda is, however, made defeasible by the sixth item of the will, which declares that if Amanda dies leaving no child or grandchild, the property “not disposed of” — that is, by the executor in the lifetime of Lina in accordance with the power of sale in the will — shall revert to his heirs who would be such by law when he died, if he had made no will. All divesting clauses, especially of remainders, are to be construed so as to vest the estate indefeasibly at the earliest possible period of time. The period of posession or distribution indicated in the will now under construction is the death of Lina. Consequently, if Amanda had survived Lina, either with or without a child or grandchild, her defeasible vested remainder would then have become indefeasible, and belonged to her, in the words of the testator, “unreservedly to do as she may think proper with.” It is therefore clear that the contingency for the divesting of the remainder to Amanda refers to her dying in the lifetime of Lina, without leaving a child or grandchild in esse at Lina’s death. These legal principles need not be enlarged upon here; for they are thoroughly covered by the opinion in the case of Sumpter v. Carter, 115 Ga. 893, 899, 900 *264 ( 42 S. E. 324 , 69 L. R. A. 274), and the authorities there cited. As the contingency upon which Amanda’s remainder was to be divested has happened by her dying, without a child or grandchild, m the lifetime of Lina, and as the latter had no other child than Amanda and is eighty years of age, without the possibility of having another child, upon her death the fee in the lands now in controversy, in the absence of a valid disposition of the same by the executor under the power of sale, will go to the testator’s heirs under the sixth item of his will. The deed of Lina and Amanda, which purports to convey a fee-simple estate to the petitioner, passes only the title which they, respectively, had under the terms of the will. A purchaser of the entire estate from the life-tenant' acquires only the interest of such life-tenant. Civil Code, §3095. And a purchaser of the entire estate from the holder of a defeasible vested remainder takes the title subject to the contingency upon which.it becomes divested before the period of possession or distribution. Nothing but the survival of the life-tenant by the remainderman, or by a child or grandchild of the remainderman, according to the terms in the limitation over, could make the remainder indefeasible or absolute, and give the fee to the grantee of the holder of such remainder. Sumpter v. Carter, supra. So that the death of Amanda Griffeth without a child or grandchild before the death 'of Lina, the life-tenant, which contingency divested Amanda’s defeasible vested remainder, left the petitioner with no other title than that of a tenant per autre vie, that is, for the life of Lina.

3. This being the extent of the title held by the petitioner, what force is there in his claim to the title by prescription ? Most clearly none. The executor held no greater estate than for the life of Lina, the life-tenant, though his investment with the power of sale extends to a sale of the fee, if made in accordance with the terms and conditions of sale authorized by the power. Civil Code, §§3191, 3171. This power, of course, does not enlarge the estate with which the will clothed him. See Luquire v. Lee, 121 Ga. 624, 628, 629 ( 49 S. E. 834 ), where these legal principles aro fully stated. It could have made no difference in this case, so far as prescription is concerned, if the executor had held an estate in fee. In no event could he bring an action for possession of the land against the petitioner, who holds the deed of the life-tenant, *265 ■until after the death of the life-tenant. Lamar v. Pearre, 82 Ga. 354, 363 ( 9 S. E. 1043 , 14 Am. St. R. 168 ); Napier v. Anderson, 95 Ga. 618, 628 ( 23 S. E. 191 ); Fleming v. Hughes, 99 Ga. 444, 450 ( 27 S. E. 971 ). Neither conld the heirs of the testator, to whom the whole estate reverts upon the death of Lina, the life-tenant, and whose right of possession therefore only accrues at that time, commence an action against petitioner for possession of the land until after the death of Lina, the life-tenant. It follows that as the petitioner could not be ousted by these parties during the life of Lina, the life-tenant, he, of course, can not claim title by prescription against them during the same period of time.

What has been said above as to the demurrer controls the case as to the verdict directed, and shows that the direction of a verdict in favor of the petitioner against the.defendants was erroneous and sl^rald be set aside.

Judgment reversed.

All the Justices concur.