Atlanta Title Trust Co. v. Erickson

The only question for consideration in the trial court and this court is whether the plaintiff in error had a good and merchantable title to the land in question. The defendant in error contends that the question should be answered in the negative because: (1) The will did not give the executrix the authority to borrow money. (2) The judge of the superior court had no authority to authorize the loan on the property (3) The loan deed did not follow the order of the judge limiting the loan to $1500, as the loan consummated was for $1920, and the loan deed had other provisions in it which were not authorized by the order of the judge. (Those provisions are not here set out for the reason that, under my view of the case, they are immaterial.) (4) The power of sale in the loan deed was void, and therefore the plaintiff in error acquired no title by its purchase. (5) The executrix and her children had no authority to bind the unborn contingent remaindermen referred to in the will. (6) The widow's title to the land "derived through the year's support proceedings, under the decision in Grant v.Sosebee, 169 Ga. 658 (151 S.E. 336), is apparently paramount to" plaintiff in error's title.

Conceding, but not deciding, that the order of the judge of the superior court authorizing the loan was unauthorized by the law, I think that the executrix, under the broad powers bestowed upon her in the will, had the authority, without any court order, and without any specific provision in the will, to mortgage the lot in question to obtain money for the purpose of paying the testator's just debts. When she made the loan deed she was the executrix of the estate, and legal title to all of the property was vested in her. "Furthermore, executors are trustees, and they are trustees having legal title to devised realty for the purpose of using the same, or the proceeds of the same, to pay debts and for distribution of the devised realty among the devisees thereof." Peck v. Watson, 165 Ga. 853, 858 (112 S.E. 450). Therefore when the executrix, having legal title to the land, executed the loan deed, her title passed to the lender, with or without any order of court, and the legal title would remain in the lender unless and until some one owning the equity of redemption invokes the aid of a court of equity to be permitted to redeem the land. Kerr v. White, 52 Ga. 362,368; Mitchell v. Miller, 183 Ga. 703 (189 S.E. 523). In the instant case there is no one who can so invoke a court of equity. The equity of redemption vested in Mrs. Foster, who expressly assumed and agreed to pay the debt outstanding against the property. She, being the only person having an equitable interest in the property, would be the only possible person who could redeem it, and she, having assumed the debt, could not do so. Setze v. First National Bank of Pensacola, 140 Ga. 603 (79 S.E. 540); Mathews v. Fort Valley Cotton Mills,179 Ga. 580, 588 (4) (176 S.E. 505).

The title of the plaintiff in error could not be attacked by either the executrix or her other children, because all three of them, together with Mrs. Foster, had participated in the application to the court to borrow the money, and are estopped from ever attacking an order which they requested the court to make. Mize v. Harber, 189 Ga. 737, 742 (4) (8 S.E.2d 1). Unless for some reason (and I can not conceive of any such reason) the title of Mrs. Foster to the equity of redemption should be held invalid, the order setting apart the property as a year's support for the widow was a nullity, since at the time of the order, the estate did not own any interest in the property. Conceding however that Mrs. Foster's title to the property was not good, and that it was properly set aside as a year's support, then the executrix would be the only person, except the plaintiff in error, who had any interest in the property, and under the above-cited decisions, she would be estopped from asserting it, and also estopped because of the fact that she received from the loan company the proceeds of the loan; and therefore her year's support would enure to the benefit of the loan company. Redwine v. Frizzell, 184 Ga. 230 (8), 236 (190 S.E. 789). The case of Grant v. Sosebee, supra, cited by the defendant in error, is not here applicable, for there the widow merely endorsed the loan note for her son-in-law and received none of the money. The other authorities cited in behalf of the defendant in error are also distinguished by their particular facts from the instant case.

The loan deed to the land in question executed by Salvador Valdes during his life was superior to his widow's right of a year's support. Pinckney v. Weil, 183 Ga. 567 (189 S.E. 8.); Richey v. First National Bank, 180 Ga. 751 (180 S.E. 740). As to the rest of the loan obtained by the executrix in executrix in excess of the $700 used to pay the prior loan, it will be presumed, in the absence of anything to the contrary, that she used it for a proper and lawful purpose. Whitfield v. Maddox, 189 Ga. 870 (8 S.E.2d, 57). The argument by the defendant in error that the possible unborn contingent remaindermen, referred to in the will, might some day assert a claim to the property, seems to me untenable. The equity of redemption to the land in question, originally belonging to the testator, had either passed to his daughter, Mrs. Foster, under the executrix's deed to her, or had passed to Mrs. Valdes as a year's support. In each instance the legal title could not be in Mrs. Valdes at the time of her death, and the possible contingent remaindermen alluded to in the will (the grandchildren, born or unborn, of the testator) were limited to "whatever property she [Mrs. Valdes] may die seized of under this will." The equity of redemption, whether owned by Mrs. Foster or by Mrs. Valdes, was terminated by the foreclosure of the loan deed, upon their default in paying the notes due thereunder.

In my opinion, the evidence, and the law applicable thereto, demanded a finding that the defendant had a good and merchantable title to the land in question, and that it could furnish such a title to the plaintiff, and that it was ready, able and willing to do so. It follows that the judgment in favor of the plaintiff was contrary to law and the evidence; and that the court erred in denying a new trial.