Hunter v. Stembridge , 17 Ga. 243 ( 1855 )

By the Court.

Benninh, J.

delivering the opinion.

Mrs. Sarah Stembridge says, in the bill that she ratifies the sale of the land.

This sale took place in pursuance of the agreement entered into by John Stembridge, her trustee, with Nelson — an agreement by which she was to relinquish her right to a support, during her life, from the land; and in lieu of that right, accept, first, the bond of Nelson, binding him to deposit with Hunter two hundred dollars, to be applied to her support, at the rate of fifty dollars a year; and also, binding him, if she-should live so long as to require more than the $200 to pay her more, at the rate of fifty dollars a year, as long as she should live. Secondly, the order of Nelson on Hunter, requiring Hunter to retain out of his, N’s. share of the first payment for the land, one hundred and seventy-five dollars, to be applied by H. to her support, according to the terms of the bond.

The administrator, Hunter, acting on this .agreement, sold the land free from the charge on it for the support of Mrs. Stembridge.

And it is the sale of the land thus sold, which she says she ratifies.

It appears, also, that Mrs. Stembridge actually received, under this agreement, a part of the money stipulated to be paid-for her support, viz: fifty dollars — twenty-five at one time, and twenty-five at another.

Thus, then, it seems that Mrs. Stembridge has ratified parts of the agreement.

[1.] But it is a principle of law, that the ratification of a part of a contract, is the ratification of the whole. (Wilson vs. Poulter, 2 Story 859. Billon vs. Hyde, 1 Atk. 128. And see Smith’s Mer. Law, 60. Addison on Contracts, 398. Story Ag. §250.

It follows that Mrs. Stembridge, in ratifying parts of this contract, ratified the whole of it.

And the whole contract, then, being to be considered as binding on her, it is a consequence, that she has no rights except such as she derives from the contract.

But from the contract, she derives no right as to the proceeds of the sale of the land, except a right to have two hundred dollars of those proceeds retained in Hunter’s hands for her use.

The charge of the Court below, therefore, that “ complainant was entitled to recover from the administrator,” Hunter, “whatever amount might be necessary and proper to give her a comfortable support, from the first of January, 1851,” &c. was erroneous. In no case could she have been entitled to more than $150 besides, perhaps, interest from Hunter.

Rut the administrator, Hunter, in his answer, says, that Nelson died, without having reduced into his possession the proceeds of the sale of the land. And he insists, that those proceeds go to Mrs. Nelson by survivorship; and therefore, that by the death of Nelson, the order on those proceeds, made by him in favor of Mrs. Stembridge, became void.

If this statement in the answer be true, that position of Mr. Hunter, is one deserving of the most serious consideration. It is a statement, however, which seems to be without evidence —which seems not to have received the notice of the Court below, and which -was not argued on authority before this Court. Eor this Court, therefore, to express an opinion on it,' would not be proper. I may, however, indicate some sources from which arguments that bear upon it may, perhaps, be drawn. (Bell vs. Bell, 1 Kelly, 637. Sayre and another vs. Flournoy and another, 3 do. 541. Marqueen, Hus. & Wife, 47, 48, 55, 56, 62, ’3, ’4, ’5, ’6. Hill on Trustees, 415, and note 1, 416 et seq.)

So there ought to be a new trial.

Our view of the case being such as it is, it becomes unnecessary to say more than what is implied in that view, on the remaining points in the case.

I may remark, that when this case was up before, nothing was considered by this Court, but what was the import and effect of a clause in the will of Thomas Stembridge.