American Mortgage Co. v. Hill , 92 Ga. 297 ( 1893 )

Bleckley, Chief Justice.

The ultimate question in the court below was whether the premises levied upon by virtue of an execution in favor of the mortgage company against W. M. Tennille was subject to sale as his property, as against a claim thereto interposed by Hill as trustee for Tennille’s wife and children. At the death of Tennille’s mother in August, 1864, these premises belonged to her, and she died testate, leaving him her residuary legatee, he being her only child. Her husband and her husband’s brother were nominated in the will as executors, but they never qualified. Her husband died in October, 1864, and in the next year one Morris was appointed administrator with the will annexed. He obtained letters of dismiss sion in 1870. W. M. Tennille arrived at majority in 1868. The administrator put him in possession of all the lands of the estate as his own property. He sold a half-interest in them to one Burnett. Thereafter, in February, 1870, all these lands were sold at sheriff’s sale as the property of Mrs. Tennille’s estate, by virtue of an execution based on a judgment rendered by Quitman superior court, at November term, 1868, in favor of Bryan against Morris, as administrator with the will annexed of Mrs. Tennille, and the sheriff conveyed the whole to Burnett and W. M. Tennille as the purchasers at that sale. He put Burnett in possession, who held the premises now in controversy until a voluntary partition of the whole lands was made between him and W. M. Tennille. By that partition Burnett’s interest in these premises ceased, and from thenceforth Tennille had and held the exclusive possession up to the year-1890, if no longer. While thus in possession he conveyed the premises by absolute deed as security for a loan of money, this deed being made under §1969 of the code. The ownership of the debt created for the loan,, and title to the premises held as security therefor, passed from the lender into the mortgage company, which obtained judgment against Tennille for the amount of the loan in March, 1889. After revesting title in Tennille as provided for by §1970 of the code, the premises were levied upon as his property in July, 1892, by virtue of an execution founded on this judgment, and a claim was. interposed by Hill as trustee for Tennille’s wife and children. By consent of parties this claim was tried by the presiding judge without a jury. His finding was in favor of the claimant, and a motion made by the mortgage company for a new trial was overruled. The contention by the mortgage company is, first, that by virtue of the sheriff’s sale and the conveyance thereunder to-Burnett and Tennille and the subsequent partition between these two, Tennille had absolute fee simple title to the property levied upon ; second, that if he acquired no title by the sheriff’s sale, he has title, by virtue of his mother’s will, to at least a life-estate in the premises, and that that estate, if no more, ought to have been found subject to sale under the execution; third, that no trust in behalf of Tennille’s wife and children was-created by the will, and therefore that the appointment of Hill as trustee, which occurred in February, 1890, was without any validity.

1. Several objections were made to the sheriff’s sale and to the title of Tennille in so far as it depends upon the deed made by the sheriff in pursuance of that sale, but only one of them was passed upon by the trial court. The others not having been adjudicated will be left for determination on a future trial. The objection ruled upon was, that the judgment on which the execution was founded was entered up and signed by the plaintiff’s attorney, and no verdict was produced or proved on which such a judgment could have rested, nor did it appear that the judgment itself had been entered on the minutes of the court so as to make it good as a judgment of the court rendered without the verdict of a jury. The judgment was more than twenty years old, and the minutes of the court applicable to the term at which the judgment was rendered were lost or destroyed. There was no proof tending to show that a proper verdict was not entered on the minutes, or, if no verdict, that the judgment itself was not so entered. Had it appeared affirmatively that the minutes contained no verdict and no entry of the judgment, then the execution might possibly be held as having had no legal judgment to support it; but without showing these things affirmatively, the presumption is, and ought to be after such a lapse of time, that the minutes contained what they ought to have contained, that is, either a verdict on which a judgment signed by the plaintiff’s attorney could properly be based, or a copy of that judgment and the signature of the judge to the minutes of the day’s proceedings on which the entry took place. To invoke such a presumption for upholding a sale made under an execution based on the judgment, which sale was acquiesced in by the parties concerned for some twenty years before any attack was made upon it, would be to rightly use the doctrine of presumptions and to treat with proper deference a judgment which the parties to it and the officers of court in acting upon it must have regarded as legal and binding, and which for more than a score of years has stood without any proceeding to reverse or set it aside. Rather than rip up a judgment and a sale under it, both of them so old, any presumption should be indulged which it is legally possible to invoke. The action in which the judgment was rendered was based on a promissory note made by the testatrix, Mrs. Tennille, nd at the trial of the present case none of the papers connected with that action could be found, except the declaration and the judgment as entered up thereon and signed by the plaintiff’s attorney. It did not appear whether any issuable defence had been filed on oath or not. The docket on which any defence would have been noted, according to regular practice, was lost or destroyed. If no such defence, was filed, the case was one in which, under the constitution of 1868, judgment should have been rendered by the court without the intervention of a jury. The judgment produced, though not signed by the presiding judge, would be a compliance with that requisite of the constitution if it was entered on the minutes of the court. This has been heretofore ruled. Odom v. Causey, 59 Ga. 607; Jones v. Word, 61 Ib. 26; Tharpe v. Crumpler, 63 Ib. 273. What we now rule is, that under the circumstances of this case, a presumption that it was so entered is to obtain, the ground of this presumption being that it ought to have been so entered if no issuable defence on oath was filed. The only possible alternative is that such a defence was filed; and if it was, then there ought to have been a verdict, and that verdict ought to have been entered on the minutes of the court. The principle of the foregoing presumption covers this alternative, for if a jury ought to have passed upon the case and their finding ought to have been entered on the minutes, these things should be presumed, in favor of the judgment of a court of general jurisdiction, to have been done, the same, on the hypothesis involved, being necessary prerequisites to the rendition of the judgment. It follows, we think manifestly, that as against the one objection to the judgment which we have considered and discussed, the premises levied upon should have been found subject.

2. But conceding that the case is to be tried by the terms of the will of the defendant’s mother, the will gives him an estate for life which could be enjoyed by him or his assignees without interfering with the trust estate in remainder which the will creates in behalf of his wife and children. This being so, the court certainly erred in finding for the claimant, the trustee, so far as this life-estate was concerned. The administrator with the will annexed put Tennille in possession, and while in possession he conveyed the land in dispute as security for the debt now sought to be collected. If he has a life-estate in it and not the whole fee, why should not this life-estate be devoted to the payment of the debt ? He is a grown man and has no need of a trustee to manage and control his life-interest in the property. If he can use and enjoy it without interfering with the trust in remainder, why may not his assignee or vendee do so too?’ And if his own assignee or vendee could do it, why could not one who comes in as a purchaser at a judicial sale ? According to the true spirit of our law at present, whatever a man can enjoy himself, as property, can be sold for the payment of his debts unless it be exempted from levy and sale in the manner pointed out by the homestead and exemption laws. The material terms to be noticed in the will are, that the residuary clause gives to Tennille the whole residue “to have and to hold to him, his heirs and assigns forever, subject, however,” to certain specified incumbrances, conditions and provisions. Amongst these was, that the income of the whole estate was to be received by the husband of the testatrix during his life, without accountability for its use. Another was, that the husband was to preserve the corpus for the benefit of the wife and children of the son, if any the son should have at his death, or in default thereof, for other beneficiaries afterwards specified. The husband having died in 1864, his interest terminated, and this extinguished his interest in the income together with the trust for the son as to the income, which was a personal trust without accountability; but the trust as to the corpus survived. That trust, however, did not interfere, certainly as to realty, with full and complete enjoyment of the property by the son during his own life. No trust as to him, apart from the office of executor, appears to have been contemplated by the testatrix, except a personal one in her husband which was to continue for his lifetime only. As the terms of the will relevant to this litigation are set out in the official report, there is no need to transcribe them in this opinion.

The court certainly erred in finding nothing whatever subject to sale under the levy and claim in controversy.

Judgment reversed.