Pease v. Wagnon

Bleckley, Chief Justice.

Although the petition and the rule nisi conformed to the general provisions of the code contained in' section 3962, prescribing the mode of foi’eclosing mortgages on real estate, yet as section 2335 declares that trastees are not authorized to create any lien upon the trust estate, except such as are given by law, and as the law, without some preliminary order granted by the proper judge of the superior court in the exercise of his equitable jurisdiction, does not enable any trustee to create a lien by mortgage, some amendment to the petition, as it originally stood, was necessax-y in order to show that the mortgage sought to be foreclosed was valid and binding upon the trust estate, that mortgage as described in the petition having been executed in 1885, long after the code went into operation. The amendment made to the petition alleged that the mortgage was “ created by the said Mary V., trustee, by vii’tue of an order of the Honorable Thos. J. Simmons, judge of’the superior courts of the Macon circuit, authorizing and' empowering said trustee to create said mortgage.” Certainly this is a vei*y general, vague and meagre averment of the judgment or decree referred to. ' But the petition as amended was met by a general demurrer only, and of course this admitted that the averment was true in substance. As Houston county is in the Macon circuit, the judge of that circuit was the proper one to exercise jurisdiction over such a matter, and the appropriate decree made in vacation conferring upon a trustee authority to mortgage the trust property, is usually called an order. The admission made by the demurrer therefore conceded that the mortgage was executed in pursuance of a decree rendered by the judge of the Macon circuit out of term. The superior court, as a court of equity, is one of general jurisdiction, and the code in section 4222 declares that “ A court of equity is always open, and hence the judge in vacation and at chambers may receive and act upon such petitions,” meaning such as are referred to in the preceding section, which, says that “All proceedings ex parte or in the execution of the protective powers of chancery over trust estates, or the estates of wards of chancery, may be presented to the court by petition only, and such other proceedings be had therein as the necessity of each cause shall demand.” It follows, we think, that the presumptions which attach in favor of judgments and decrees by a court of general jurisdiction, apply to orders like the one alleged by this amendment to have been granted by the judge of the Macon circuit. That such an order could lawfully be granted out of term, see Weems v. Coker, 70 Ga. 746.

"We are not to be understood as indorsing the amendment as good pleading in point of form. If the petition as amended had been demurred to specially, pointing out that the order granted by the judge should be set forth in terms or attached as an exhibit, such a demurrer ought to have been sustained, but the petition would have been still further amendable and doubtless the requisite amendment would have been made, had this particular defect been pointed out. The court erred in dismissing the petition on the demurrer adjudicated upon, which, as applied to the amended petition, was a general demurrer only. Judgment reversed.