Citizens Bank v. Citizens & So. Bank , 160 Ga. 109 ( 1925 )

Hines, J.

(After stating the foregoing facts.)

The assent of the executor to a devise of land may be either express or implied. Such assent may be presumed from the conduct of the executor. Civil Code (1910), § 3896; Jordan v. Thornton, 7 Ga. 517; Parker v. Chambers, 24 Ga. 518; Thursby v. Myers, 57 Ga. 155. When the devisees and executors are the same persons, and the devisees dispose of the land in their individual capacity, the assent of the executors to the legacy will be presumed. Thursby v. Myers, supra; Vanzant v. Bigham, 76 Ga. 759; Belt v. Gay, 142 Ga. 366 (82 S. E. 1071). The assent given to a devise of land to a tenant for life or widowhood will inure to the benefit of remaindermen in fee. Jordan v. Thornton, Parker v. Chambers, Thursby v. Myers, supra; Watkins v. Gilmore, 121 Ga. 488 (2) (49 S. E. 598); Almand v. Almand, 141 Ga. 372 (2) (81 S. E. 228); Moore v. Turner, 148 Ga. 77 (95 S. E. 965).

When the assent of the executor is once given to a devise of land, it is generally irrevocable, although the assets of the estate prove insufficient to pay the debts of the estate. Such assent perfects the inchoate title of the legatee; and the land is no longer a part of the estate of the testator, and is not subject to be sold under an order of the ordinary to pay the debts of the testator. Watkins v. Gilmore, Moore v. Turner, supra. So “where property of the testator was turned over to the legatees by his executor before the commencement of a suit against the latter upon a claim alleged to be due by such testator, such property is not subject to levy and sale under an execution based on a judgment obtained in such suit.” Castellaw v. Guilmartin, 58 Ga. 305. So ordinarily where the executor assents to a devise of land and puts the legatee in possession, this amounts to an administration of the land by the executor, and, in the absence of fraud, completes and perfects the inchoate title of the devisee, so that the land is no longer a part of the estate of the testator, and can not be sold under an order of the ordinary to pay his debts, nor under a judgment subsequently obtained against the executor upon an indebtedness of the testator.

But to the general rule last announced there is one exception, which rests upon sound law and good morals. Judge Bleckley states this exception in this language: “An executor, having notice of an outstanding debt against his testator, can not administer to himself, as devisee or heir at law, any portion of the realty in kind, so as to hold it free from the ordinary legal lien of a judgment de bonis testatoris subsequently rendered against him in favor of the creditor.” McMillan v. Toombs, 79 Ga. 143 (4 S. E. 16). Judge Bleckley in that ease well says: “There is no case in which an executor or administrator has been suffered to administer to himself against a creditor of whose claim he had notice. If in a regular and legal method he administers to others, and there is no fraud, that will do; but we have not found a case where he has administered. to himself with full notice, and then defied the creditor when the execution came against him.” In the instant case the executrix and executor were devisees of the land in dispute. The executrix was the life-tenant. The executor and two other children of'the testator were remaindermen. With actual knowledge on the part of the executor of the debt of the testator to the Citizens Bank of Vidalia, and with the fair presumption that this creditor had given notice of its claim to the executor and executrix, the latter, within a few days after the expiration of the twelve months in which the creditor was prohibited from bringing suit on its claim against the testator, administered to themselves as devisees the premises in dispute. In these circumstances their title thus acquired must yield to the lien of a judgment de bonis testatoris subsequently rendered against them in favor of the creditor.

But how stands the bank which acquired from such devisees title to this property to secure a loan ? If the claimant bank acted bona fide, for value, and without notice of such maladministration of this property, then its title would be superior to the lien of this judgment. The plaintiff in execution offered testimony to prove that the claimant, before acquiring title to this property, had notice and knowledge of the maladministration of this property by the executors. This testimony was to the effect that the cashier of the plaintiff bank, learning that the claimant contemplated making a loan to W. T. French and taking from him and Mrs. French a deed to this property to secure such loan, and wishing to protect the plaintiff, which was a large creditor of the testator, notified the attorney, who was examining the title and preparing the deed to secure the intended loan, and while the attorney still had in his possession his report on the title and said deed, that the makers of this deed, who were the devisees of this land under the will and who wére the executors, had assented to the devise giving them this property without paying the large debt which the plaintiff held against the testator. It is well settled that notice to an attorney is notice to the client employing him, and that knowledge of an attorney is knowledge of his client, when such notice and knowledge come to the attorney in and about the subject-matter of his employment. Brown v. Oattis, 55 Ga. 416; Deveney v. Burton, 110 Ga. 56, 62 (35 S. E. 268); Civil Code (1910), § 3599; Jones v. Lamon, 92 Ga. 529 (2) (18 S. E. 423); 6 C. J. 638, § 144; Lampkin v. First Nat. Bank, 96 Ga. 487 (23 S. E. 390).

It is necessary that the knowledge of the attorney be gained in the course of the particular transaction in which he is employed by his client. 6 C. J. 639. In case óf a limited employment, knowledge of the attorney beyond the scope of the employment is not imputable to the client. Hess v. Conway, 92 Kan. 787 (4 A. L. R. 1580, 1604, 142 Pac. 253). It has been held that, where a party employed an attorney for the special purpose of examining an abstract and passing upon the record title, the client was not chargeable with notice of all knowledge which the attorney may have previously acquired from other transactions for other parties. Trentor v. Pothen, 46 Minn. 298 (49 N. W. 129, 24 Am. St. R. 225). This is not this case. There was evidence which would have authorized a jury to find that the attorney who examined the title to this property and prepared the deed to secure the loan made by the claimant to the borrowers was the attorney for the claimant in this transaction. The vice-president and cashier of the claimant, who handled this transaction for his bank, testified’that his bank would not have made this loan without an .examination of the title having been made by an attorney selected by him. He further testified that the attorney so selected by him did make this examination, and that he relied upon his examination of the title. It is true that the borrower was to pay all expenses of securing the loan, including the fee of the attorney; but this fact alone would not make him the agent and attorney for the borrower and not for the lender. This case does not fall within that class of cases in which the attorney negotiates a loan as agent for the borrower, and in the inspection of property and examination of title acts solely as his agent. Merck v. American Freehold &c. Co., 79 Ga. 213 (7 S. E. 265).

So we are of the opinion that the court below erred in ruling' out the above evidence offered by the plaintiff in fi. fa. to show that the claimant was not a bona fide purchaser for value and without notice of its rights. This error affected the further proceedings in the case, and rendered erroneous the direction of a verdict in behalf of the claimant.

The rulings made in the fifth and sixth headnotes do not require elaboration.

Judgment reversed.

All the Justices concur, except Gilbert, J., disqualified.