Fraser v. Rummele , 195 Ga. 839 ( 1943 )

1. Where a will bequeathing realty and personalty was executed according to the law of the State where the testator resided, and was duly probated in that State, it may be treated in this State as a valid bequest of such personalty, although it was not attested by as many as three witnesses as required by the law of Georgia. Knight v. Wheedon, 104 Ga. 309 (30 S.E. 794). Accordingly, in the instant case the court did not err in admitting in evidence a certified copy of the New York will, over objection that it was attested by only two witnesses and under the law of Georgia would be ineffectual as to an interest in realty; it appearing that as applied to this case the only property claimed by the plaintiff under such will consisted of notes secured by deeds to real estate in Georgia; and that no interest in the real estate itself was claimed thereunder. See, in this connection, Code, §§ 113-613, 113-705, 102-108; Castens v. Murray, 122 Ga. 396 (50 S.E. 131); Bank of Eton v. Owens, 146 Ga. 464 (91 S.E. 476); American Surety Co. v. Pettie, 178 Ga. 26 (171 S.E. 916); Chapman v. McPherson, 184 Ga. 613 (5) (192 S.E. 423); McMullen v. Carlton, 192 Ga. 282 (14 S.E.2d 719).

2. The administrator's deed under which the plaintiff claimed title to part of the lands in question was not inadmissible in evidence as showing upon its face that the various separate and distinct tracts described therein were sold under a single lump bid, the deed reciting "said lots or parcels of land thus described were bid off by the said party of the second part at the price or sum of six thousand, three hundred, and 00/100 ($6,300) dollars, she [the party of the second part] being the highest and best bidder." If it would have been unlawful to sell the various tracts collectively under a single bid, it should be presumed that the administrator complied with the law and sold the tracts separately, until the contrary is shown; and the recital as quoted, without more, would not show that they were not sold separately and at prices aggregating the entire sum stated. Code, § 113-1720. Copeland v. Kimbrough, 149 Ga. 683 (3), 687 (102 S.E. 162); Wilson v. Aldenderfer, 183 Ga. 760 (189 S.E. 907). Moreover, even if the deed might be taken as showing irregularity in the respect indicated, it would not for that reason alone be subject to collateral attack; nor could any one except an heir or creditor attack it in any manner, for such defect. Hamilton v. Cargile, 127 Ga. 762 (2) (56 S.E. 1022). See generally 34 C. J. S. 558, § 595; 21 Am. Jur. 733-734, §§ 626-627; Id. 745-746, §§ 649-650.

3. Nor was it error to admit in evidence a deed made in pursuance of a power of sale contained in a security deed, over objection that it appeared that the plaintiff as trustee, and as attorney in fact for the debtor, had become the purchaser at her own sale under the power of sale, when under the terms of the security deed she was not authorized so to do. If the sale was unauthorized as contended, the deed was still not void but was merely voidable, and hence should be treated as valid until set aside in a proper proceeding. Code, § 37-607; Palmer v. Young, 96 Ga. 246 (22 S.E. 928, 51 Am. St. R. 136); Standback v. Thornton, 106 Ga. 81 (31 S.E. 805); Williams v. Williams Co., 122 Ga. 178 (58 S.E. 52); Payton v. McPhaul, 128 Ga. 510 (4) (58 S.E. 50, 11 Ann. Cas. 163).

4. The bill of exceptions contained the following recital, and assignment of error on the direction of the verdict: "The court directed the jury to find a verdict in favor of the plaintiff and against your defendant upon all of the issues involved in said case, to which order plaintiffs in error then and there excepted and now except and assign the same as error upon the ground that the same was contrary to law, and that the court, having admitted in evidence over objections of your plaintiffs in error [stated documents as mentioned in the preceding notes], the direction of said verdict and entering of said judgment thereupon were an illegal termination of the case." Held, that under this assignment the only questions raised were whether the court erred in any of the antecedent rulings; and since it appears that no such antecedent error was committed, the judgment must be affirmed as to all of the assignments of error. Lyndon v. Georgia Railway Electric Co., 129 Ga. 353 (58 S.E. 1047); Shippen Hardwood Lumber Co. v. Johnson, 168 Ga. 112 (147 S.E. 115); Hamilton National Bank v. Robertson, 177 Ga. 734 (171 S.E. 293); Mullis v. McCook, 185 Ga. 171 (194 S.E. 171); Hodges v. Seaboard Loan Savings Association, 188 Ga. 410 (3 S.E.2d 677), s. c. 60 Ga. App. 335 (3 S.E.2d 843).

Judgment affirmed. All the Justicesconcur.

No. 14500. MAY 6, 1943. Mrs. Florence Shelley Rummele filed suit in the superior court of Fulton County against S. A. Fraser, and his wife Mrs. Hazel M. Fraser, and Merchants Mechanics Banking Loan Company, for the purpose of quieting the title to several tracts of land to which she claimed title. The petition contained, among others, the following allegations: The plaintiff was formerly the wife of Fred M. Shelley, who died a resident of the State of New York, she having married again since his death. Mr. Shelley, in his lifetime, bought certain notes or bonds issued upon security deeds made to the defendant Merchants Mechanics Banking Loan Company as trustee. He died leaving a will in which he bequeathed to her all of these notes or bonds. His will, though signed by only two witnesses, was executed according to the laws of New York, and was duly probated in that State after his death. The plaintiff was the executrix of his will. Because of defaults by the debtors, all of the loan deeds except one were foreclosed by sales by the original trustee under powers of sale contained in such deeds, the plaintiff as executrix becoming the purchaser. Afterwards an administrator appointed in Georgia for her husband's estate, acting under proper order of court, sold all of the properties which she had thus acquired as executrix, and at this sale she became the purchaser as an individual. As to one of the security deeds, the original grantee resigned as trustee and Mrs. Rummele herself became successor trustee in accordance with its terms. She then as such trustee sold the property described in this deed, and became the purchaser as an individual. The plaintiff thus became the owner of all the lands described in the petition. Later she discovered that Merchants Mechanics Banking Loan Company, Fraser, its cashier, and Mrs. Fraser each claimed an adverse interest in one or more of these properties, the various claims being fully described in the petition. She prayed to have these adverse claims canceled on the theory that the Merchants Mechanics Banking Loan Company had been trustee, and that its relation as trustee prohibited it, or any one connected with it and having knowledge of the facts, from acquiring claims adverse to the beneficiary of the trust.

Fraser and Mrs. Fraser filed answers, and the case came on for trial before a jury upon the issues as thus presented. Various documents were introduced in evidence on both sides, three of those offered by the plaintiff having been admitted over objections of the defendants. At the conclusion of the evidence the court directed a verdict in favor of the plaintiff against the defendants, granting to the plaintiff the relief prayed. Mr. and Mrs. Fraser brought the case to this court, assigning error on the rulings admitting in evidence the documents to which objections were made, and excepting to the direction of the verdict. The other facts are sufficiently indicated in the decision.