Thurmond v. Faith , 69 Ga. 832 ( 1883 )

Crawford, Justice.

1. The plaintiffs in errorbrought this suit torecoverof the defendant two tracts of land containing one hundred and one and one-fourth acres. They rested their title on a deed made to them whilst minors by their grandfather. The defendant claimed title under the same deed, and another made to him by the mother and-legal guardian of the plaintiffs. .

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 or parcels of lands, or either of them, whenever, in the discretion of such guardian, the same shall be necessary for the support, maintenance and education of the parties of the second part.” •

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 appointed, and made without an order of the ordinary, and because, further, it was an exchange of the land of the wards for the land of the defendant.

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.

2. It is said, however, that it was not a sale, but an exchange of the lands of the wards for the lands of the defendant. Had the power of the guardian been limited to the sale of the land only, then there might have been some force in the point; but it must be noted that the guardian is clothed with the power to sell and dispose of, which, as therein used, included not only the power to sell, but the power of disposition, such as was made by the guardian. Indeed, the transaction was simply a sale with payment in land instead of money, and was not a violation of the trust reposed in the guardian, but in conformity to the power under which she acted. Of course, a sale by a guardian, such as is provided for by law, must be made as directed, but it can hardly be said that this was anything more than the execution of a power, and the term guardian was merely used as denoting the person who was to exercise that power,

3. The only other question of law made in this record and urged before us, is that the court erred in withdrawing from the consideration of the jury, the defendant’s deed made to the guardian of the plaintiffs, for the land sold her for that in dispute, and the testimony of Hughes, Hall, Pattillo, Doane and Pittman, witnesses who had been sworn upon the trial. There appears nothing in the deed of the defendant to the guardian which is unusual, except the recitation in full of the terms upon which the sale and exchange of the lands had been made between the parties. The testimony of the witnesses contained nothing to throw suspicion upon the good faith of the defendant, unless, perhaps, by a strained construction of a suggestion made by the defendant to the guardian about not getting an order from the ordinary, as the parties met that official on their way to to execute the deeds. But even this remark was made in the presence of the father of the guardian and the grandfather of the children, who came with his daughter and the defendant to town — was with them all the time— present at the making of the deed, and present at the city hall when the conversation took place, immediately after the deeds were drawn, touching the subject of an order by the ordinary for the sale of the land.

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.