Richards v. East Tennessee, Virginia & Georgia Railway Co.

45 L.R.A. 712, 33 S.E. 193, 106 Ga. 614, 1899 Ga. LEXIS 736

• Court: Supreme Court of Georgia
• Decided: March 4, 1899
• Status: Published

Opinions

Lewis, J.

On March 30,1890, Virginia Henderson, Pauline Floyd, Charles Ralls, and Mary Ellis, all and the sole surviving children of Sarah A. C. Ralls, who died in 1888, sued the rail-1 way company for a tract of land in the Coosa division of Rome,' known as those parts of city lots 156 and 157 lying back of a line parallel with and 120 feet "from the front of said lots on formerly South street, but now First avenue, together with the improvements thereon, and for rents etc. since January 1,1888. There was a verdict for the plaintiffs for the premises in dispute, and rents at the rate of $75 per month; whereupon defendant moved for a new trial, which was granted, and the plaintiffs excepted. It appears from the record, that the legal title to the premises was originally in James C. Branch, of Clarke county, who was the father of Mrs. Sarah Ann C. Ralls, and that the latter, with her husband, was put in possession .of the land by Branch about the year 1849. They remained in possession until 1869; or at least, while it appears that during a portion of the period between 1849 and 1869 they were not actually living on the premises, it does not appear that any one during this whole time had any control or dominion over the land except Sarah Ann C. Ralls, or her husband. During such possession valuable improvements were placed by them upon the land. In 1869 Mrs. Sarah Ann C. Ralls brought her petition, beginning: “Georgia, Floyd County. To the Honorable R. D. Harvey, judge of the superior courts of Rome circuit, and exercising jurisdiction in chancery.” The recitals in the petition •were in substance as follows: that petitioner is the daughter of James C. Branch; that her husband for three years, from depression and weakness of mind, had been wholly unable to attend to any business; that J. C. Branch had held in trust for her separate use lots 156 and 157 in Rome, which he had given her in the year 185 — , and which she had resided upon and improved ever since as her separate estate; that her father, said Branch, who had held the title to said property, had died, and she had no trustee. In order that the trust might not fail,, she prayed that some proper person be appointed trustee, with power to hold the property for her sole and separate use; and having full confidence in Jones, she prayed that he be so appointed “ and clothed with the legal title” to the property. She-further alleged that it was for the best interests of herself and her estate that the property be sold, a cheaper residence bought,, and so much of the surplus as needed applied to buy necessaries for herself and children. , Therefore, that the trustee be so empowered to sell and reinvest, etc. This was signed by solicitors for complainant. No entry of filing appeared upon the-petition. Jones consented to accept the trust, July 15, 1869;. and on July 20, 1869, an order was granted by Judge Kirby,, appointing him trustee, and empowering him to sell, reinvest,, etc., as prayed. Under this order Jones as trustee sold to Wads-worth a small triangle off of the rear of the lot for $175. This-portion of the property will hereinafter be designated as the“Wadsworth triangle.”’ It passed from Wadsworth, by successive conveyances, to the defendant.

Later on Mrs. Ralls, for herself and as next friend and natural guardian of her children, not naming them, brought a bill in Clarke superior court, alleging that she was a daughter of James C. Branch, deceased, who had purchased of Shorter lots 157 and 158 in the Coosa division of Rome, Ga.; that Branch had repeatedly expressed his purpose to convey in trust to her, for the benefit of herself and children, this property according to the terms of the trust deed executed by him to one Black, a copy of which was annexed; that the portion of the purchase-money paid by Branch for the property was her own, previously advanced her by him as a part of her share of his estate; that she and her children had been in peaceable and uninterrupted possession of the property for nearly twenty years previously to the death of Branch, had paid the taxes and made various im provements thereon during all that time; that Branch died testate, leaving various persons named as legatees; that the property did not form part of the estate of Branch, nor did the-title to it vest in his legatees and heirs, but was in complainant and her children subject only to the trust as stated in the deed to Black. The prayer was, that the title be vested in Jones as trustee of herself and her children, subject only to the conditions in that deed. The legatees and heirs of Branch and the executrix of his will were made parties defendant. They jointly answered the bill, admitting the allegations as- true. At the February term, 1871, there was a verdict, that in 1851 Branch purchased of Shorter and gave to Mrs. Ralls the land in question; that she liad since been in possession thereof; that the land had been paid for by Branch in part with her money which he had before given her; that he had intended to convey the land to her and her children under the same terms and limitations contained in the trust deed to Black • that she had paid the taxes and made improvements on the faith of that understanding; that the title to said property vest in the said Sarah Ann C. Ralls and her children, and that the executrix of Branch do execute to Jones, “in trust for the benefit of the said Sarah Ann C. Ralls arid her children,” a deed to the land under the same terms and limitations as are contained in the Black deed. The decree followed the verdict. The deed inade in pursuance of this decree by the executrix of Branch -was dated February 14,1871, and conveyed the land to Jones, “as trustee for said Sarah Ann C. Ralls and her children, and successors of said trustee, . . to have and to hold unto said B. F. Jones as trustee as aforesaid, and his successors in trust, forever in fee simple, for the sole and separate use of the said Sarah Ann C. Ralls and her present children and any future child or children of hers, free from all debts etc. of her present husband as well as of any future husband she may ever have, and after the death of said Sarah Ann C., to her children free from and relieved of the trust.” This conveyance followed the Black deed, the latter containing a warranty to Black as trustee, as aforesaid, to be by him held for the purpose and use hereinbefore named.

After this decree a supplementary petition to the one first above mentioned was brought, of which the following is the substance so far as is material: The petition began, “Georgia, Floyd County. To the Honorable R. D. Harvey, judge of the superior courts of Rome circuit, and exercising jurisdiction in chancery.” The complainants or petitioners were Jones, trustee of Mrs. Ralls and her children, who were minors, and Mrs. Ralls. The allegations were, that since the foregoing petition and order was granted, petitioners, by a bill in chancery against the administratrix of said J. C. Branch and against the guardian of his minor children and heirs, in Clarke superior court, obtained the decree above mentioned, and a deed to the property in pursuance thereof; that it is still for the interest of the family of Mrs. Ralls and her children that the property should be sold and a farm or other home be bought, and, if a farm, stocked with part of the funds for the use of the family, upon which they can live and earn a support; that the house is very much decayed and will soon be worthless unless repaired, and petitioners are without means to repair it; that the family is destitute of means of support, that they are living in the house, have no income, and are in need now of daily food and raiment; that petitioner can sell a portion of the property to the Rome Hollow-Ware and Stove Foundry, by taking half of the purchase-money in the stock of that company, and believes that this will be a paying investment. The prayer was : “They pray your honor to authorize said sale and investment, and also to authorize and order the sale of the balance of said property, and the investment of the proceeds as hereinbefore prayed, and that so much of the proceeds as is needed be expended for such supplies as the family needs.” The petition was signed by B. F. Jones as trustee, and by Sarah A. Ralls. Opposite these signatures appeared the words : “ Jan’y adjourned term, 1871.” No entry of filing appeared on this supplementary petition which was attached to the original petition, and in the backing of it the words, “July term, 1869,” were changed to “ Jan’y adjourned term, 1871.”

The following orders and answer of guardian ad litem were read in evidence from the minutes of the court, to wit: “In the matter of B. F. Jones, trustee of Sarah Ann C. Ralls and •children, which is an application for the sale of the trust property and investment of the proceeds thereof, ordered that H. D. Cothran be appointed guardian ad litem for the minor children

of Mrs. Ralls [naming them], and that he answer said application.” This was dated May 10, 1871, and signed by R. D. Harvey as judge. The answer of Cothran as guardian ad litem stated, that he had read the petition and application, and found that the facts therein stated were true; that he was familiar with the conditions and circumstances of the family of Mrs. Ralls, and with the condition of the property; and that he- concurred in the petition, and recommended that the prayer thereof be granted. The following order was passed by the court upon the application: “ Upon hearing the foregoing petition and answer of the guardian ad litem, and upon examination of all the papers and copy-papers therein referred to, it is ordered by the court, that Jones, trustee, have leave to sell the portion of the property to the Rome Hollow-Ware & Stove Foundry and invest one half of the proceeds in the foundry, and that the balance of the money arising from the sale be expended in providing for the immediate necessities of Mrs. Ralls, in paying cost, etc., and that Jones, trustee, be authorized to make sale of the balance of the property and purchase a farm or other home with part of the money, stock the farm, if a farm, provide for and pay the necessary expenses of the family as they may rise from time to time, and that this petition and order and papers aecompanying the same and the certified copies of the papers in the equity cause in Clarke superior court, etc., be entered on the minutes of the court, and that the petition and order of Judge Kirby be also entered nunc pro tunc.” This was signed by R. D. Harvey as judge of the superior courts of the Rome circuit, “ Jan’y adjourned term, May 12th, 1871.” It was admitted that the minutes of Floyd superior court show that that court was in session at the January adjourned term, 1871, on the 10th, 11th, and 12th of May, 1871, and that on May 12, 1871, the court took a recess from May 12 to May 29, 1871; that the foregoing proceedings were recorded as of May 30, 1871, and that said adjourned term finally adjourned on June 7, 1871; also that the minutes of May 10, llj and 12, made no reference to said proceedings. Under this last order the rest of the premises in dispute was sold, and defendant claimed under a purchaser at this sale.

It was contended by counsel for plaintiffs, (1) that the intention of the judge in ordering a sale of the property was to sell only a trust estate, and this was held by Jones in trust only during the lifetime of Mrs. Ralls. (2) That if such was not his intention, the order as well as the sale thereunder was void in so far as it undertook to convey the fee in remainder that belonged to the children; the order being passed at chambers, and the court being without jurisdiction to grant the same. On the other hand, it is claimed by the defendant, (1) that the order was not granted at chambers, but in term, and that the sale thereunder conveyed the legal title to the entire fee. (2) That the evidence showed an outstanding title in the husband of Mrs. Ralls, by virtue of his marital rights, superior to any title set up by the plaintiffs, and that they could not recover in this action. (3) That inasmuch as the plaintiffs went into possession of, and were enjoying the proceeds of the sale of some of the trust property (not including any of the land in dispute), they thereby ratified the sale of the entire estate, and were estopped from denying the validity of the order under which it was had at different times. (4) That even if plaintiffs were entitled to recover, their claim for rents and mesne profits should be offset by improvements placed upon the property by it and those under whom it claimed, which greatly enhanced the value of the property for rent, etc. There were various grounds in the motion for a new trial, but the above will cover all the material questions of law involved. Among the errors complained of in the motion for new trial was a charge of the court to the effect that the proceedings had in May, 1871, before Judge Harvey, by which leave was granted to Jones, trustee, to sell this property, did not authorize him to sell anything more than a life-estate. It seems that the judge held, that while this order was granted in term and not at chambers, yet it was not the purpose of the order to authorize a sale of anything except the life-estate.

1. The jurisdiction of courts of equity over the persons and property of infants dates from a very early period in the history of these courts. In its inception this jurisdiction belonged to the King of England, the same constituting a part of his powers as parens patriae to protect his subjects, and was transferred by him to the court of chancery. This jurisdiction is broad, comprehensive, and plenary. In all suits or legal proceedings of whatever nature, in which the personal or property rights of a minor are involved, the protective powers of a court of chancery may be invoked whenever it becomes necessary to fully protect such rights. Should such proceedings be instituted and it should appear to the court that the infant is unrepresented by any one fully charged with the power and duty of protecting his interests, it is the duty of the court to appoint a guardian ad litem for the minor. But the court’s duty does not end here. The minor in such an action becomes a ward of the court of chancery, and the chancellor himself is in legal contemplation the infant’s guardian. He continues to look after and protect the rights of the minor, and the appointed representative is but a mere agency through which the court is required to act in giving this protection. To this •end the chancellor may compel the guardian to answer the suit, and, whenever it should appear that it is to the interest of the ward to resist the proceeding, he can compel the guardian to take such steps as are necessary to have properly adjudicated the rights of his ward. He can, sua sponte, refuse to allow any admissions or concessions made by the guardian against the interests of his ward; and whenever such guardian is derelict in the performance of his duty, the court can discharge him and appoint another in his stead. In short, this general supervisory power which a court of chancery can exercise over the rights of a minor extends throughout the proceeding; and the plenary jurisdiction of a court of equity in ■such matters can not now be questioned. 6 Am. & Engl Enc. L. 728 (12); 10 Enc. PI. & Pr. 588 et seq., and authorities cited; 10 Am. & Eng. Enc. L. 692 et seq.

2. It follows from the above principles, that whenever an •application is presented to the chancellor, seeking a sale or •other disposition of land in which minors have an interest, either legal or equitable, they become wards of chancery. Such was the nature of the petition in Sharp v. Findley, 71 Ga. 654. On page 665 of that volume Chief Justice Jackson, delivering the opinion of the court, says, “The very minute this petition came before this chancellor and disclosed the fact that the land of infants was involved, his wards were before him, and the case was concerning ‘an estate of the wards of chancery.’” In the case of McGowan v. Lufburrow, 82 Ga. 532, Justice Simmons (now Chief Justice), after citing approvingly the opinion of Chief Justice Jackson above quoted, says: “ Here, as we have shown, was an application before the chancellor concerning the estate of infants. According to this decision, just as soon as the application was presented to him, they became his wards, or the wards of chancery. He thereby obtained power and jurisdiction over their persons and their property.” In 10 Enc. Pl. & Pr. 589, the same principle is announced in the following words: “ Whenever a suit is instituted in the court of chancery relative to the person or property of an infant, although he is not under any general guardian appointed by the court, he is treated as a ward of the court and as being under its special cognizance and protection.” See also authorities cited, including the case of Sharp v. Findley, supra. It is contended by counsel for plaintiffs, that the deed executed under the decree of the superior court of Clarko county, on February 14, 1871, by the executrix of the estate of James C. Branch, conveyed the land in dispute to B. F. Jones as trustee for Sarah Ann C. Ralls and her present children' and any future child or children of hers, during the lifetime of the said Sarah A. C. Ralls, and after her death the property passed to her children relieved of the trust; that under this deed the children, who are the plaintiffs in this case, took an equitable estate as joint usees with their mother during her life, and a legal estate in remainder in the fee, to take effect in possession at her death. Under the authority of Franke v. Berkner, 67 Ga. 264, we think this is a proper construction to place upon the terms of that deed. It might, however, with some degree of plausibility, be contended that it was the purpose of the deed above referred to, to convey not only an estate for life to the trustee, but also the entire fee during the lifetime of the life-tenant, Sarah Ann C. Ralls. The instrument conveys the property to Jones “ as trustee for the said Sarah Ann C. Ralls and her children, and successors of said trustee.” In the habendum clause the following words are used: “To have and to hold unto the said B. F. Jones as trustee as- aforesaid and his successors, in trust forever in fee simple, for the sole and separate use of the said Sarah Ann C. Ralls and her present children and any future child or. children of hers.” It iss true, the deed states that after the death of the said Sarah Ann C. Ralls the property passes to her children free from and relieved of the trust. We do not think there can be any question that the grantor has the right to convey to the trustee the fee-simple title and at the same time limit the duration of the trusteeship. He could, for instance, have in this case clothed the trustee with the legal title to the fee during the lifetime of Mrs. Ralls, and at the same time have provided that at her death the trust should cease and the fee should pass from the trustee to the remaindermen. In fact, whether the conveyance limited the trust as to its duration or not, the law would necessarily fix a limitation. In this case the trust would have been at an end when the minors arrived at age, the mother being sui juris under the act of 1866. We can not conceive of a case in which there could be no end to the exercise of such a trust.

It might with some force be contended, therefore, that if the words “in trust forever in fee simple,” above quoted from the deed, have any force or effect whatever, they clothed the trustee with the legal title to the entire fee during the lifetime of Mrs. Ralls. The words “in fee simple” do not occur in the deed which was construed by the court in Franke v. Berkner, supra, and this distinction might be drawn between that case and the one now under consideration. We think, however, the principle decided in that case, as above indicated, would constrain us to hold that the words, “ after the death of the said Sarah Ann C. Ralls, free from and relieved of the trust,” limit the estate the trustee took and it did not include the legal remainder. Such seems to be the idea of Chief Justice Bleckley in the opinion rendered by him in East Rome Town Co. v. Cothran, 81 6a. 365: “ Where the conveyance limits the estate to less than a fee, the trustee never has a fee; but where the law passes the fee by executing the trust, the fee which was before in the trustee passes out of him into the beneficiary.” This view seems to have been adopted by counsel for both parties, in the argument; and in the consideration of this case we will treat it as a correct construction of the instrument in question.

Assuming, therefore, that when the trustee made his application for the sale of this property he was not clothed with any title to the fee in remainder, it is nevertheless true that if the purpose of his application was to sell the entire fee, including the remainder which was vested in the minors, the moment the petition was presented to the chancellor he saw that the interests of these minors were involved, not only in the Iife-esfate, but in the remainder, and from that time they became wards ■of chancery. As to what proceedings should be had in order to bring legally into operation the protective powers of a court of chancery in such a case, is a matter for legislative regulation. If no special procedure is provided by statute, it would seem that the rules governing the procedure in ordinary cases in equity would apply and should be followed. In this- State we think that the statute not only recognizes the complete and plenary jurisdiction of chancery in such cases, but also clearly indicates the nature of the procedure that should be had. Civil Code, § 4863, declares: “ All proceedings ex parte, or in the execution of the protective powers of chancery over trust estates, or the estates of the 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.” The following section provides that a court of equity is always open for such purpose, and the judge can, either in vacation or at chambers, receive and act upon such petitions. Section 4865 provides, among other things, that in an application for the sale of trust property where any person is interested besides the applicant, notice must be given to such person before the court can proceed. The following section, 4866, provides: “If minors are interested and they have no guardians, guardians ad litem must be appointed and notified before the cause proceeds.” The proceeding in this case on which was based the order of the judge, of May 12,1871, was not only an effort to sell a trust estate in the property but, as we shall hereafter see, the entire fee, whether encumbered with the trust or riot. It was presented to the court by the petition of the trustee and of the life-tenant, Sarah Ann C. Ralls. It involved not only a trust estate, but, minors being interested, not only as beneficiaries of that estate but also as remaindermen, it involved the estate of the wards of chancery. It was also a proceeding ex parte, or at least in the nature of such a proceeding; for the ostensible purpose of the petition was for the benefit of all concerned, and there was apparently no adverse interest to be considered in passing upon the application. The proceeding that was Instituted, therefore, was literally and substantially in accord with the provisions of section 4863 of the Civil Code, above quoted, and it embraces the very subject-matter of chancery jurisdiction clearly contemplated and recognized by that section.

3. Minors were interested; they had no guardian; a guardian ad litem was appointed in compliance with the provisions of Civil Code, §4866. This was before the act of 1876 which requires personal service on minors in all such cases. Before the passage of that act, an appointment of a guardian ad litem for a minor, and notification of him before the cause proceeded, was all that was required to have the interests of a minor properly represented in any cause in court. Harvey v. Cubbedge, 75 Ga. 792; Adams v. Franklin, 82 Ga. 168.

4. It is contended by counsel for plaintiffs, that when the judge granted the order of May 12, 1871, authorizing a sale of this property upon the supplemental petition of Jones, trustee, and Sarah A. C. Ralls, it was his purpose simply to authorize a sale of the trust estate and not a sale of the fee in remainder, and that in the light of the entire proceedings had this was tho legal effect of the order. There can be no question that the purpose of the petition was to obtain authority to sell the entire fee to the property. There is nothing whatever in the petition to indicate a contrary purpose. The object of the petition was, first, to supply the immediate wants and necessities of the beneficiaries, among whom were included all the remaindermen; and, second, to invest the residue of the proceeds of such sale in a farm or other permanent home for these beneficiaries and remaindermen, upon which they could live and earn a support. Upon this application a guardian ad litem was appointed, and in his answer he concurred in the petition,, found the facts therein stated were true, and recommended that the prayer thereof be granted. The order granting the sale had direct reference to the petition and answer, and granted leave to sell the property and apply the proceeds of the sale-thereof, as prayed for. Whenever one seeks to sell property or negotiates for its sale, the. presumption is that his purpose is to convey an absolute estate, unless a less estate is expressly mentioned and limited. Civil Code, § 3083. The only reason, urged in support of the plaintiffs’ contention is the construction they place upon the phraseology used by the judge in-granting the order appointing a guardian ad litem for the-minors. That order is as follows: “In the matter of B. Fb Jones, trustee for Sarah Ann C. Ralls and children, which is an application for the sale of the trust property and investment of the proceeds thereof, according to the prayer of the said petition. It is ordered' that H. D. Cothran be and he is hereby appointed guardian ad litem for the minor children [naming them] of the said Sarah Ann C. Ralls, and that he answer said application.”- It is insisted that, by virtue of the terms of this-order, the judge regarded the application only as one for the sale of such interest in the property as was covered by the-trust; that he therefore appointed a guardian to represent the-minors as to this interest; and that his purpose in granting the order for the sale was only to sell the trust estate and not the fee "in remainder.

'■In' the’first place, we regard the words in the first part of the order'-only as an effort on the part of the judge to state the case. ' He named one of the petitioners, and stated the case as-an application for the sale of trust property. If minors were-interested in a suit, praying not only for injunction but for other substantial, equitable relief, and a court should appointá guardian to represent their interests, it would hardly be contended that, simply because in his order appointing the guardian he stated the case as an application .for injunction, such guardian would only be empowered to represent the interests of the minors in so far only as they were interested in the prayer for injunction, and could not represent their entire interests in the suit. This guardian ad litem was appointed to represent the minors in the proceeding that was then before the court. To determine what is the extent of their interest in such proceeding, one would naturally look to the petition itself, and not simply be content with what the judge had denominated the petition, in his order. The two should be construed together; and so construed, we think there can be no question that the legal effect of this order was to clothe the guardian ad litem with full power and authority to represent the entire interests, legal and equitable, of these wards in chancery. Besides, we think the construction given the words, “ application for the sale of the trust property,” is entirely unauthorized. In the light of the nature of this petition and its object to sell the entire fee for the purpose of a reinvestment in a permanent home, to hold that the judge contemplated restricting the power of sale to the life-estate would simply bo an absurdity and would be entirely at variance with the clear and unmistakable meaning of the final order that he passed in the case.' The terms, then, “trust property,” as used in the order,, meant simply a designation and identification of the particular thing involved. He simply meant the land itself which was ■encumbered with the trust.

In the case of Headen v. Quillian, 92 Ga. 220, it appeared That a trust estate was granted by deed for the use of the wife of the grantor for her life, or widowhood, and after her death the property passed to her children. In that case, the fee in remainder was a legal estate which vested in the children when ■the deed was executed; the trust only covered the life-estate of the wife. The deed gave the trustee, with the consent of the life-tenant, power to sell “said trust estate.” It was held that this authorized a sale of the entire fee. Chief Justice Bleckley, delivering the opinion of the court, on page 222 says: “There can be no rational doubt that by the terms ‘said trust estate,’ as an object of sale, the maker of the deed intended and understood the land itself which the deed conveyed. . . To hold that he contemplated restricting the power of sale to the-estate for life would attribute to him a technical narrowness-utterly strange to his thoughts and at complete variance with his real state of mind.” The principle embodied in this decision, and in several others by this court to like effect, is embodied in Civil Code, §3171. We dare say, there never was an instance where a trust deed or other instrument limited the-estate which the trustee took for life with remainder over, and where the trustee applied for and obtained an order to sell and reinvest the proceeds, but that a sale of the entire fee, and not simply of the life-estate, was contemplated both by the application and by the order of sale. It is true, there are a number of cases decided by this court in which it has been held that such a sale conveyed only the life-estate and not the fee; but not in a single case that we are aware of has the decision of the court been based upon the idea that the purpose, either'of the applicant or the judge, was to sell only such interest in the-property as was encumbered with the trust. We think, therefore, the court below erred in his conclusion that the judge by his order of 1871 only intended to direct a sale of the trust or life-estate.

5. It is insisted for plaintiffs, that before jurisdiction exists to sell the legal estate of minors, there must be a regular proceeding in equity. To sustain this position the case of Milledge v. Bryan, 49 Ga. 397, is cited and relied upon. In that case the trust had ceased and the legal estate in the property had vested in the children. No interest in the land sought to-be sold was encumbered with any trust whatever. It was-simply held that the judge of the superior court had no jurisdiction to grant an order in chambers authorizing a sale of the whole estate, either to pay a debt or to raise money to educate-[the children. But Judge Trippe, in delivering the opinion in that case, from which counsel make the above quotation, expressly stated that the orders were passed by the judge in chambers several years before the code went into operation, and that the only authority that could be claimed for the power exercised by the judge was the act of the 20th of February, 1854. By reference to that act (Acts 1853-4, pp. 59, 60) it will be-seen that the judges of the superior courts are authorized at chambers, where all parties at interest are represented and consenting and where there is no question of fact in dispute, to appoint or remove trustees, and to order tho sale or division of trust or other property or the investment of trust or other funds. This act was intended to meet the decision in the case of Arrington v. Cherry, 10 Ga. 429, where it was held that a judge at chambers has no power upon petition to order a sale of trust property. "While the terms of the act do not seem to restrict tho jurisdiction at chambers over trust property alone, but the words “other property” are used, yet this expression is so indefinite, general, and uncertain that the court- having in view .the evident object of the act limited its application in Milledge v. Bryan to trust estates alone. When the first code, however, went into effect on the first of January, 1863, the law on the subject was changed. Sections 4863, 4864, Civil Code, are not a codification of the act of 1854 or any other special statute that we are aware of. Section 4863 does not leave it uncertain as to what proceedings may be presented to the court by petition only, and which are not required to be brought by regular bill or petition in equity. It includes “all proceedings ex parte, or in the execution of the protective powers of chancery over trust estates, or the estates of the wards of chancery.” In the act of 1854 no reference is had specially to any estate, except trust estates. In the case at bar the proceeding to sell the property in question was not only an ex parte one, but it related - also to the trust estate, and, as heretofore shown, to the estates of the wards of chancery. It therefore embraces all three of the subjects contemplated in the above section of the code, ydiile either one would have given the court jurisdiction under the form of procedure that was had. When the court, therefore, in Milledge v. Bryan, supra, called attention to the fact that the orders of the judge, in question, were several years before the code went into operation, it doubtless had in mind the change which the code had wrought in the old law; and bonce this decision, if it has any bearing on this case, is really authority against tho plaintiffs.

As an.original proposition, speaking for myself, I would not be prepared to hold that the judge in this case did not havo jurisdiction to grant the order at chambers, authorizing the sale of this entire property including the legal estate in remainder. The Civil Code, §4864, expressly declares that “The judge in vacation and at chambers may receive and act upon such petitions.” In the cases of Sharp v. Findley, 71 Ga. 666, and Iverson v. Saulsbury, 65 Ga. 728, this court in construing this section held it to confer jurisdiction to finally act at chambers in proceedings contemplated by this chapter in the code. In the case, however, of Rogers v. Pace, 75 Ga. 436, it was held that the chancellor had no power to decree a sale of such a legal estate in remainder at chambers in vacation, and that a sale of the corpus under a decree so rendered conveyed only the trust estate of the life-usee. The reasoning of Justice Blandford, in Rogers v. Pace, on page 438, seems conclusive as far as it went, but it was based solely upon the provisions of section 2327 of the old code, which only authorized the sale of the corpus of a trust estate by order of the judge in vacation. That section was evidently an effort to codify-the act of 1854 above cited. No reference whatever is made in the opinion to the provision of law embodied in section 4864 of the present Civil Code, and which we think, beyond question, has direct application to just such a proceeding as was had in this case. We are constrained to believe, therefore, that the last section cited, and other provisions in that same chapter, were entirely overlooked by the court when the decision in Rogers v. Pace was rendered. It is true, Rogers v. Pace has since been cited approvingly by this court in other cases; but we think, upon a careful review of all these later cases, none of them involve the identical question now under consideration and which was decided in Rogers v. Pace. In East Rome Company v. Cothran, 81 Ga. 359, the sale of the legal estate in remainder, there declared invalid, was under an order of court upon the petition of the trustee and life-tenant, to which the remaindermen, who were minors, were never made parties. See page 366. In that case it is worthy of note that there was subsequently an effort by petition, to which the minors were parties, to ratify the sale of their interest in the land previously had. The order of ratification was granted at chambers. On page 367, Chief Justice Bleckley, who delivered the opinion, stated, that the order of ratification, though had at chambers, might have cured all defects in the title had the judge not been disqualified. If the judge Bad jurisdiction to grant an order of ratification at chambers, it seems to us it would necessarily have followed he would have had like power to grant the original order of sale at chambers, had the minors been properly made parties to the proceeding and represented before him.

In Lamar v. Pearre, 82 Ga. 354, the trustee represented the life-tenant only. It was simply held in that case that the interests of the remaindermen were not conveyed by the sale of the trustee under proceedings of the court to which they were 'not made parties. Of course this would have been true whether the order was granted in term or at chambers. In Taylor v. Kemp, 86 Ga. 181, the life-tenant applied for and obtained an order to sell the entire fee in the land. The application was made by him as trustee, but in point of fact he was not trustee for ■any one, arid the property was not really encumbered with any trust. It does not appear in that case that the remaindermen were even made parties to that suit. In Fleming v. Hughes, 99 Ga. 450, it was decided that the judge of the superior court had no power at chambers to order a sale of the fee upon petition of one who was simply trustee for the life-tenant. It does not appear that the remaindermen were made parties to that proceeding. In the case of Walker v. Pope, 101 Ga. 665, there was an attempt, by one who assumed to act as trustee for an adult life-tenant, to sell the entire fee including the vested remainder of the children. There was no pretense that the children were parties to that proceeding and were bound by it; but it was sought to bind them by a subsequent settlement, ’ by their consent, with the life-tenant; and the question in the ease was one simply of ratification by the remaindermen and estoppel as against the rights of subsequent innocent purchasers.

Under the view we take of this case, the decision in Rogers v. Pace, even if correct law, does not control the main issue here involved. We have indulged in criticisms of that case, and have referred above to the main authorities relied upon by plaintiffs in error to support .its correctness, with a view of showing that the rule therein laid down should be restricted to what was actually decided, and not extended so as to further curtail the powers of a chancellor over the estates of his wards. As far as this court has ever gone is to declare that the chancellor has no power to grant at chambers an order for the sale of the legal estate of minors. It has been nowhére intimated, that we are aware of, in the decisions of this court or in any opinion by any of its members, that since the adoption of the-code it is necessary there should be a regular petition or bill in equity filed, process attached, copy served, and all other proceedings had as are usual in ordinary suits in equity. The question as to whether or not a court of equity has inherent jurisdiction to order the sale of the legal estate of minors for the purpose of reinvestment is still an open one in this State. We confess that, after a thorough investigation upon this subject, we have met with considerable difficulty in arriving at a conclusion entirely satisfactory; and the difficulty has not been completely removed by the investigation of the numerous authorities bearing directly upon the subject. There is a hopeless and an irreconcilable conflict of authority on the question among the decisions of the courts of last resort in the United States, as well as among the numerous text-writers, and in the courts of England. From 10 Enc. PI. & Pr. 733 et seq., we quote the following: "At common law the guardian or trustee of an infant had no right to change the nature of an infant’s property from realty to personalty, or vice versa; and it is still a disputed question, upon which the authorities are conflicting, whether even a court of equity can authorize such a conversion, in the absence of statutory authority, and by virtue of its general jurisdiction over the estates of infants, except for the purpose of paying debts and for the maintenance of the infant. The jurisdiction has been claimed and exercised in many cases, the rule being broadly declared to be that chancery has jurisdiction to order a conversion of realty into personalty whenever it clearly appears to be for the infant’s interest to make such a conversion. But in England, and in many American courts, a contrary doctrine prevails, and it is held that a court of equity has no inherent jurisdiction to> direct a sale or mortgage of the real property of infants.” As far as our examination of the English authorities has gone, we think that the weight of them denies to a court of chancery such inherent jurisdiction. But even here we are met with conflict; for in some of the cases holding this view, references are made to other decisions by the judiciary of England entertaining contrary views. We deem it unimportant, however, to enter into a review or a discussion of these English authorities ; but it is well enough to bear in mind a fact that is recognized in many text-books on the subject, also in Supreme Court decisions of several States, and 10 Enc. PI. & Pr. 737, that “the principal reason for denying this jurisdiction in England appears to have been that, by changing the nature of the minor’s estate from real to personal, or from personal to real, the rights of third persons who would be entitled in case of the minor’s death would be materially affected,, as in that country real and personal property descend in different channels, and also because it would formerly have changed the infant’s power to make testamentary disposition of his property.” For those and other reasons the doctrine has not been followed in many of the States of this Union. It has, however, been followed in others, and though there appears considerable conflict, we think the weight of adjudications on the subject is against the English rule.

In the case of Hale v. Hale, 146 Ill. 227, authorities upon this subject in Illinois and elsewhere were reviewed, and the court reached the following conclusion: “The power of courts of chancery by virtue of their general jurisdiction over the estates of infants to authorize the conversion of their real .estate into personal, where it is clearly for their interest that such conversion should be made, is not only supported by the general current of authority in this country, but is so thoroughly settled by the former decisions of this court as to be no longer open to question in this State.” In the case of Goodman v. Winter, 64 Ala. 311, is the following ruling: “In this State the chancery court, by virtue of its general jurisdiction over infants and their estates, has power to decree the sale of an infant’s lands, whether held under a deed or will, having regard to the necessities and interest of the infant; and this jurisdiction extends to contingent estates, or estates held in remainder, though it may be more sparingly exercised.” It will he seen from the able opinion rendered in that case by Brickell, C. J., that the doctrine announced was based upon the inherent jurisdiction of a court of equity upon which rested the power and duty of the court to protect infants, to take care of and preserve their estates while under disability debarring them from the administration of the property; and a discussion is likewise entered into why a different rule prevails in England. The samo doctrine is announced in Thorington v. Thorington, 82 Ala. 489; Gassenheimer v. Gassenheimer, 108 Ala. 651. This inherent jurisdiction of a court of chancery is recognized and affirmed by Chancellor Kent in the matter of Saulsbury, 3 Johns. Ch. 348, and Hedger v. Ricke, 5 Johns. Ch. 163; and in Snowhill v. Snowhill, 2 N. J. Eq. 20, 22. In tho case of Bulow v. White, 3 Rich. Eq. (S. C.) 321, it is declared that it is not disputed that the court of chancery has the power to sell and convey the estate of an infant; and that however doubtful it may at one time have been considered, it is now too firmly established to be shaken; and that the exercise of this jurisdiction, through the process of petition, however originating, has been sanctioned and confirmed by long-established practice; and that the right of the court in this respect is no more to be disputed than its right to order the sale of property for investment under the more expensive procedure by bill. See also Bulow v. Buckner, 8 Rich. Eq. Cas. 401. Such general jurisdiction was also recognized by the Supreme Court of North Carolina in the case of Sutton v. Schonwald, 86 N. C. 198. Also in the case of Rowland v. Thompson, 73 N C. 504; Myers &. Jacks, 33 Ark. 425. We call attention to the above authorities as a few of those in this country that do not recognize tho general doctrine in England; and while there is considerable •conflict, as above indicated, between those and the decisions of •other courts, wo think tho decisions recognizing this general inherent power in a court of equity rest upon the sounder reason and the wiser policy. It is true that in many States the question is of no importance, from the fact that the subject is regulated by statute.

Prior to the passage of the act of November 11, 1889 (Civil Code, § 2545), the ordinary in this State had the authority to. grant to the guardian of a minor child an order authorizing the 'guardian to sell unproductive real estate belonging to the ward, for the purpose of reinvesting the proceeds of the sale in other and productive property. Crawford v. Broomhead, 97 Ga. 614. It follows, therefore, when the orders for the sale of this trust property in 1869 and 1871 were passed, the act of December 21, 1827 (Cobb’s Dig. 325, 326), authorizing a sale of realty belonging to orphans was in force, though, we believe, the same was not embodied in the code. We do not mean to say, therefore, that there was in equity or in the judge of a superior court of this State any inherent jurisdiction simply to sell the legal estate of a minor for the purpose of reinvestment, prior to the act of 1889; provided the application urged no equitable reason for the sale and attempted to accomplish no more than what the court of ordinary clearly had jurisdiction over. But that is not the case we are now considering. It should be borne in mind that this was not an application simply to sell the real estate of minors. There was involved in the matter an equitable estate, to wit a trust estate, over which no court had any jurisdiction except the superior courts of this State. The object of the application, and indeed it was the prime object for the appointment of a trustee, was to bring about a sale of the entire fee in this property, including not only the legal estate of the minors, but also the equitable estate .in which they likewise had a beneficial interest. Manifestly the court of ordinary had no jurisdiction whatever in regard to the equitable estate. To have applied simply to the court of ordinary for direction to sell the fee in remainder in the property could not have accomplished the purpose of the petition. On the other hand, to have applied alone to the judge of the superior court for an order to sell the trust -estate only would equally have failed in bringing about results that were manifestly for the interest of the beneficiaries; for it would simply have been an absurdity to have asked permission to sell a life-estate in property which was bringing no income, with the view of raising proceeds sufficient to invest in property that would be sufficiently productive to support the beneficiaries. Besides, the ordinary had no authority to direct a private sale which was desired to be accomplished in this particular case. Here was a case, then, involving a matter over which equity clearly had jurisdiction; and this fact would give jurisdiction over other things connected with the equitable relief sought, although the court would not consider such other matters taken singly and alone, and not accompanied with any element in the case looking to equitable relief. Even the strongest authorities denying chancery jurisdiction to order the sale of the legal estate of minors recognize the fact that under such circumstances, especially where the rights of third parties are involved, such sales could be legally had. ■ For instance, where the minors are tenants in common with other parties, the legal estate of the minors in such property may be sold and thus converted into money, upon the application of the other tenants in common desiring partition.

In this case there was another tenant in common with the minors, to wit their mother. The very purpose of the conveyance of the land to them was that they might be provided with maintenance and support; and yet the property was in such condition that neither the mother nor the children could enjoy any benefits even of the life-estate without a sale of the entire fee. The case might have been different had the minors no interest whatever in the life-estate; but where they not only own the legal estate in remainder but are likewise beneficiaries of the life-estate, and it is shown to be absolutely to their interest, and even necessary to provide for them support, maintenance, and a home, to sell the entire fee, including both their legal and equitable estates, we can see no reason why a chancellor (in this State the judge of the superior court) would not have the power, under the general inherent jurisdiction of courts of equity over the estates of minors and the interests of the wards of chancery when before them, to entertain jurisdiction and grant the relief prayed. This is not, therefore, a case in which the abstract doctrine above referred to, that no such inherent power exists in reference to a sale of 'the legal estates of minors, obtains, but we think, under its peculiar facts, it is to be clearly distinguished from all those cases in which this doctrine is recognized and enforced. For, if the superior court had not the jurisdiction in this case, then these plaintiffs were absolutely without any remedy whatever in any court of the State to obtain the relief which the petition of the trustee showed their distressed condition at the time demanded. Wo' think it clearly a case where, under the broad and comprehensive powers of a court of equity over the estates of orphans and minors, the granting of the relief sought was within the inherent jurisdiction of the court.

6. We will now consider the question as to whether, under the facts of this case, the order of May 12, 1871, authorizing a sale of the property in question,' was granted in term or at chambers. The petition of the trustee and life-tenant for the sale of the property had entered upon its back, “January Adjourned Term, 1871.” The order of sale, granted by the judge, was signed by him as “judge of the superior courts of the Rome circuit, Jan'y adjourned term, May 12th, 1871.” It was evidently the intention of the petitioners that their suit should be considered a term proceeding; and when the judge signed the order, he manifestly regarded it as a proceeding in term. It further appears that on the date of this order the court was actually in session and did not finally adjourn until the 7th day of June following. Before its final adjournment the entire proceedings were recorded upon the minutes of the court, These facts, in the absence of any proof to the contrary, are certainly sufficient to authorize the conclusion that this order was granted during a regular term of the court, in open court while it was actually in session. It is this open proceeding during a regular session of the court that distinguishes actions at term from such as are had in vacation and at chambers. It is insisted, however, that as the petition was never filed, the case not regularly docketed, no process attached, and the order directed a record of the proceedings as is usually done in matters decided at chambers, these facts conclusively demonstrate that this was a chambers proceeding. It was decided in the case of McGowan v. Lufburrow, 82 Ga. 524, that the decree in that case, under the facts reported, was passed in term time and not at chambers. The original record in that case, which we have just examined, shows that there was no prayer for process in the petition; no process attached to it; the petition was. not filed until the very day the order was granted; there was-no verdict of a jury ; the petition itself was backed, “In Chat-ham Superior Court, in Chambers,” and the order of the judge had the following caption: “Ex Parte Mary G. Lufburrow, Executrix, et al. In Chatham Superior Court, in Chambers.” It is true, it further appeared in that case by oral testimony that this order was actually granted in open court during the term; but that oral testimony is not stronger than the record in this case, which in effect declares the order now in'question, was actually granted in term. There may be some question as to whether one would be allowed by parol testimony to contradict the record of the court; but it will certainly be presumed that the record speaks the truth, until the evidence is. clear and positive to the contrary. It is insisted, however, that this case of McGowan v. Lufburrow, is based upon special statutory provisions as embodied in § 4855 of the present Civil Code, which relates to proceedings by executors when it becomes, impossible to carry out any last will and testament. It will be seen, however, both from the facts in the McGowan case and from the opinion and reasoning of the court, that the proceeding was not based upon this section of the code. It is true the petition was by an executor, but it was for the purpose of selling the portion of the legal estate of minors devised to them, under the will, in order to pay off debts created by the life-tenant. It is true, it appeared in the testimony that some small portion of these debts was chargeable against the estate. The. bulk of them, however, were debts of the life-tenant. There, was no pretense that for any reason it was impossible to execute the will; for that will directed in the first place that the debts should be paid. On page 532 Justice Simmons expressly, bases the authority of the court to act, in granting its order of sale, upon §§4221, 4222 of the old Code, §§4863, 4864 of the present Civil Code. The court doubtless went upon the idea, as intimated by Chief Justice Bleckley in Blake v. Black, 84 Ga. 399, and by Chief Justice Jackson in Sharp v. Findley, 71 Ga. 665, that executors are trustees and that in one sense that was a trust estate, because the will is a great trust conveyed to the executor, and hence the court had jurisdiction of that matter; not by virtue of §4855, but under §§4863, 4864 of the codey and, bearing in mind that this court had previously decided a legal estate in remainder of minors could not be ordered sold at chambers, it was a material question in the Lufburrow case as to whether the order of sale was granted at chambers or in term. However that may be, the question was directly made and directly decided that, under the facts of that case, the final action of the judge was had during term and not in vacation.

In the McGowan case, 82 Ga. 534, it was decided that under the provisions of § 4221 (§ 4863 of the present Civil Code), it was not necessary to file an ex parte petition any number of days before the term, as that section prescribes no time wherein a petition of this character should be filed. The court 'further held in that case, that even if the omission to file the petition had been irregular, it would not have made the decree entered thereon void. See also Dean v. Central Cotton Press Co., 64 Ga. 670; Southern Marble Co. v. Stegall, 90 Ga. 237. In the last case cited it is true the suit was by an executor and based upon an impossibility to carry out the will; but it is clearly indicated in that case that it was a term proceeding, and the fact, that there was a failure to attach process to the petition and the failure to file the same did not vitiate the proceeding or make it one at chambers.

Considerable stress is laid, in this case, on the fact that the judge, in his order authorizing a sale of this property, also directed a record of the proceedings, thus indicating an intention to comply strictly with the act of February 20, 1854, authorizing a sale of trust estates at chambers. In the case of Southern Marble Co. v. Stegall, 90 Ga. 241, a similar order was granted with reference to a record of the proceedings in that case; so •it seems to be not an unusual thing for such orders to be given in cases decided at term. In the case at bar there appears a special reason for granting this order. The petition had reference to a suit in equity had in Clarke superior court, which fixed tho title to this property in Mrs. Ralls and her children. It was desired, not only that the pleadings should be recorded, but also that the bill and decree in Clarke superior court should likewise be entered of record, and hence a special order was prayed for and granted for this purpose. Counsel for plaintiffs in error rely upon a dictum by Chief Justice Jackson, in Sharp v. Findley, 71 Ga. 663, in which it is stated that there was no regular bill in equity filed and served according to law, and that the case may be considered as one at chambers. In that very connection, however, the Chief Justice stated that the order was actually passed in term. On page 668 (4) the proceeding is clearly regarded as one in term, and the court simply decided that this fact would not render the decree less effectual than if passed at chambers. Even if the facts of this case, with reference to the granting of this order, are open to two constructions, one, that it was granted in term, and the other at chambers, “it is our duty, in favor of jurisdiction to pass the order and the proper exercise of the same, to adopt that construction which treats the order as completely legal, rather than that which would hold it partially illegal, and, to that extent, void or voidable.” Lamar v. Pearre, 82 Ga. 360.

7. The more especially should such a construction be adopted and enforced, when we consider the fact that the rights of innocent purchasers are involved. Equity is always loath to interfere with such rights, and courts “have gone far to protect such purchasers even when they held under doubtful or irregular sales or defective or incorrect judgments of courts having jurisdiction of the subject-matter.” Sharp v. Findley, 71 Ga. 677-8; Schley v. Brown, 70 Ga. 64; McGowan v. Lufburrow, 82 Ga. 534. There is no question from this record that the parties under whom the defendant claims are innocent purchasers, for value, of the property in dispute. There was some testimony that some of these plaintiffs, while minors, knocked down a portion of a wall that the original purchaser was undertaking to erect upon the property, but this was evidently after the purchase and after the vendee commenced to improve the property he had innocently and in good faith bought. The petition for the salo of this property was brought, not only by the trustee, but by the mother of these plaintiffs. It presented a case of absolute necessity for the sale of the entire property, in order to provide for them the necessaries of life and to procure for them a home or farm from which they could make a support. While equity regards a minor as a privileged person and should vigilantly protect and guard his rights in every proceeding that involves his interests, yet, when the minor is properly represented in court and it has jurisdiction over his person and the subject-matter, the law will always presume that the chancellor acted wisely and in the full discharge of his duty with reference to the estate of his ward. Neither principles of law, equity, nor justice would, in such a case, tolerate setting aside the judgment for any mere irregularity, especially when the effect of such a course would be to deprive the innocent, not only of the property they purchased, but of improvements placed thereon, enhancing it perhaps tenfold in value. We do not think there was really any defect attending the granting of this order by the judge on May 12, 1871; and even if there was, it was a mere irregularity which did not render void the judgment of the court. We therefore conclude that whatever title the plaintiffs had to the property sold under this order was divested by virtue of this sale, and that therefore there can be no recovery, under the facts of this case, of this portion of the premises in dispute.

8. The title to the Wadsworth triangle, however, stands upon an entirely different footing. This property was sold under an order of court, granted on July 20, 1869, upon a petition filed by Mrs. Sarah A. C. Nalls. In that petition she alleged that her father, J. C. Branch, had held the property in trust for her separate use. No allusion whatever was made in it to her children. The father having died, she prayed the appointment of a trustee as his successor, and that he be clothed with the legal title to the property. She asked that the same be sold, a cheaper residence bought, and so much of the surplus as was needed applied to buy necessaries for herself and children. A trustee was accordingly appointed, and an order for the sale granted. The purchaser at the sale under this order acquired all title, rights, and equities in the land, which were owned by Mrs. Ralls. After this sale Mrs. Ralls, for herself and children, brought her bill in Clarke superior court. She states in her bill that her father, John C. Branch, had repeatedly, in the presence of witnesses, expressed his intention and purpose to convey in trust to complainant, for the benefit of herself and children, said property according to the terms of a trust deed executed by him to one George S. Black, on November 24, 1860. It further appears from her petition, that a portion of the purchase-money paid by Branch for the property was her individual money previously advanced by her father as part of her share of his estate. The verdict of the jury rendered at the February term, 1879, was, that Branch did purchase of A. Shorter and give to the said Sarah A. C. Ralls the land in question, that .Mrs. Ralls had since been in possession thereof, and that tho land had been paid for by Branch in part with her money which he had before given her. Tho verdict further specified, that Branch had intended to convey said land to her and her children under the same terms and limitations in the trust deed to Black, and had frequently so expressed himself. The jury thereupon found the title vested in tho said Sarah A. C. Ralls and her children, and that the executor execute to Jones, in trust for them, a deed of conveyance under the same terms and limitations as were contained in the Black deed. Here, then, are two petitions filed by Mrs. Ralls, in one of which she alleged, in effect, the property belonged to her by virtue of a gift from her father; in the other she alleged, and the jury so found, that it was given to her, but that it was the intention of the father to convey it to her and her children in accordance-with the terms of the Black deed. This Black deed, however, was not executed until 1860, about ten years after the parol gift to Mrs. Ralls.

There is but one way in which the two petitions can be reconciled, and it seems to us a legitimate construction to place upon them and the only one that can be placed without imputing falsehood to the petitioner. The property was given to her and she put in possession thereof about the year 1849 or 1850. No-mention was then made of the children. He afterwards said that he intended to convey the land to her and her children just like he had conveyed the property in the Black deed; but a declaration of that intention was not made until after the execution of the Black deed, which was some ten years after the parol gift to Mrs. Ralls. Either Mrs. Ralls, or her husband by virtue of his marital rights, clearly had an equity in this land and a right supported by something else besides a mere parol gift for love and affection. A portion of the premises was bought with her own money, and upon the strength of the gift either she or her husband made valuable improvements upon the land and remained in possession thereof for nearly twenty years. But what equity did the children have in the land? Upon what claim of right or title could they have based a proceeding, at any time prior to the decree of Clarke superior court, had in 1870, to recover from Mrs. Ralls the premises in dispute? All that their claim could have been founded upon was a parol understanding or declaration made by their grandfather, engrafting a trust upon the land, in their favor, after he had parted with all equity to it by a gift to their mother. Outside of the pleadings to which we have referred, instituted by their mother, there is absolutely nothing in this rec■ord to support even such a claim. The will executed by Branch mentions advances that he had made to his children, and among them property to the amount of several thousand dollars made to Mrs. Ralls; but nowhere in that will does he .refer to the premises in dispute or to any property which he intended to convey to Mrs. Ralls and her children. The parol testimony introduced on the trial of this case fails to disclose even such a purpose on his part, and the testimony of the witnesses with reference to improvements is to the effect that these improvements were placed upon the premises by the husband of Mrs. Ralls. It is true, by virtue of the record of Clarke superior court the children acquired an interest in this land, including a legal estate to the fee in remainder thereto; but the purchaser of the Wadsworth triangle was not a party to this proceeding, nor does he claim under any sale based upon that decree.

We must therefore determine the rights of these parties by the condition of things that existed when the Wadsworth triangle was sold in 1869. When this sale took place, it is not pretended that there was anything whatever to put the-purchaser on notice of any claim which these children had to the land. All right they acquired thereto was by virtue of a decree of court granted subsequently upon the petition of their mother, and based, at that, not upon any real equity they had in the-land, but purely and simply upon a declaration made by the' original owner after he had given the land to their mother. Even if this declaration had been made in writing, it could not-have operated to have conferred a valid legal title upon these plaintiffs. See Lemon v. Wright, 31 Ga. 317. Much less could a trust in land be thus set up by parol. Under the facts in this case, therefore, we think that when the sale of this Wadsworth triangle was had in 1869, Mrs. Ralls had an equity in the land at least superior to that of her children, and she could have then successfully defended any action which might have been instituted by them against her for the recovery of any interest in the premises. If this be true, then it necessarily follows, a fortiori, that an innocent purchaser of her interest, without any knowledge whatever of the children’s equity or claim, acquired by that purchase a title superior to any claim of these plaintiffs..'

It appears further from the record in this case, that the possession by the mother, of the property in dispute, covered a period of about twenty years prior to the decree of court creating the trust estate in favor of herself, with feé in remainder to the children. Under section 3571 of the Civil Code, exclusive possession by a child of lands belonging originally to the father, without payment of rent, for the space of seven years, creates conclusive presumption of a gift. Between January 22, 1852, and the adoption of the Code of January 1, 1863, there seems to have existed no law in this State allowing an adverse possession on occupancy alone to ripen into a title; and the section cited, as well as sections on the subject of twenty years prescriptive title and seven years under color of title, as-they now exist in our law, became of force by adoption of the first code. While this is true, however, it does not follow that these provisions of the code do not relate back to a prior possession. In the case of Shiels v. Roberts, 64 Ga. 372-3, this court applied the rule of twenty years possession to a case where such possession commenced prior to the adoption of the code, and it was ruled that it was competent for the legislature to take into account the past possession and tack that to the future possession to make the twenty years. We do not see why a like rule would not apply to a presumption of gift arising out of the possession by a child for seven years. But, however this may be, as above indicated, apart from this question of prescription, there was a complete equity outstanding against the claim of title set up by the plaintiffs in error. It is true that by virtue of his marital rights the husband of Mrs. Ralls may have acquired this title; but as to the particular piece of land in question, the defendant, not claiming under the same original grantor with the plaintiff, had a right, as a defense against plaintiffs’ action, to show an outstanding title or equity superior to that set up by plaintiffs. The weight of authority is to the effect that such outstanding title can hot be shown where the plaintiff and defendant claim under the same original grantor, and where the defendant fails to connect himself with such outstanding title; and there is no conflict in authority on the proposition that this defense is allowed in an ejectment case when the parties do not claim title from the same original source.

It is further insisted that the decree of Clarke superior court, rendered in 1871, related back to the parol gift by Branch in 1849 or 1850, and that therefore these plaintiffs had a title paramount to that of the defendant, even as to this particular part of the property now under consideration. It is true that their title does thus relate back in so far as are concerned the rights of all who were parties to the proceeding in which said decree was rendered; but it would certainly be a dangerous precedent to hold that such a decree was binding upon innocent purchasers who were not parties to the case, and to apply to them a judgment of the court which they could have successfully resisted, under the facts in this record, had they been parties to the proceeding. The conclusion, therefore, is that before the plaintiffs’ rights were established by the decree of Clarke superior court, a sale by their mother, or her trustee, of the Wadsworth triangle, precluded them from any recovery of this property, or from asserting any rights thereto, against those who had innocently purchased it without knowledge of their equity, if any they ever had.

The above views render it entirely unnecessary for us to consider the other important and interesting questions made by this record, touching mense profits, and the outstanding title in the husband of Mrs. Ralls which defendant claims to be superior to any title set up by plaintiffs, and the doctrine of estoppel and ratification which was also set up by way of defense to this action. The views above expressed dispose of the entire case; for under the facts we hold that no recovery can be legally had by plaintiffs.

Judgment affirmed. All concurring, except Simmons, C. J.