McRarey v. Huff , 32 Ga. 681 ( 1861 )

By the Court.

Jenkins, J.,

delivering the opinion.

The sole question presented by this record is, whether there be any equity in complainants’ bill?

At the time of the administrator’s sale, out of the circumstances of which their application for relief grows, complainants were minors, incapable of asserting their rights or defending their interests. Their sisters (the wives of the defendants below) were the principal actors in the transaction, and'their husbands, have succeeded to whatever rights and liabilities they acquired and incurred thereby. They made known to the administrator of their deceased father, and caused it to be proclaimed at the sale that they proposed to purchase the tract of land in question for themselves and their minor brothers, the complainants, and thereby suppressed competition in bidding. The consequence was that they purchased the land for less than it was worth, and immediately thereafter resold it for a profit. The purchaser from them, by arrangement, paid to the administrator the amount of their bid, received a title directly from him, and gave to the sisters, Nancy and Louisa, his note for $1050 00, this being their profit on the purchase and re-sale of the premises and the fund now in dispute. At the time of the re-sale, and taking the purchaser’s note, they stated to him that they would hold that nóte, and the money, when collected, for the common benefit of themselves and the complainants, and it is precisely this appropriation of the fund upon which the latter now insists. It is objected, on the part of the plaintiffs in error, that their wives made no contract with the defendants, who were incapable of contracting. True, but they voluntarily assumed a trust for them, and in that character contracted with the administrator and with Cheeny, to whom they afterwards sold the land. They paid out no money of their own, but dealt freely with property in which the complainants had, with themselves, a common right of inheritance.

It is further said, that for their undertaking they received no consideration, and are therefore not bound by it.

By the public declaration of a trust assumed at the time of the sale, they purchased the property for less than its value, and the consideration paid to the administrator was thus reduced, and the fund in his hands for distribution lessened. The distributive share of each heir-'at-law was lessened in proportion. Thus the act of the purchaser was a positive detriment to the defendants in error, as heirs-at-law of the intestate. To the same extent the sum coming to their hands from the sale of the land was increased. So that, if it be necessary to search for a legal consideration, it may be found, either in the benefit derived by the promisor or injury resulting to the other party. 1 Parsons on Contracts, 359, and the authorities cited in note C. It is again said, that the undertaking was not binding on them, because there was no mutuality in it, the infants not being bound thereby. But to the rule requiring mutuality of obligation, there is an exception in favor of infants. 1 Parsons on Contracts, 277.

It was clearly admissible for defendants in error to acknowledge the trust and insist upon its execution. It is not the privilege of those who assumed it, to renounce it at pleasure, and appropriate the profits resulting from its assumption. We think the equity of the bill clear and strong.

Let the judgment be affirmed.