Rome Land Co. v. Eastman

6 S.E. 586, 80 Ga. 683

• Court: Supreme Court of Georgia
• Decided: May 14, 1888
• Status: Published

Opinion

Blandford, Justice.

John W. H. Underwood, the father of Mrs. Florence W. Eastman, made a deed by which, in consideration of “ love and affection for his said daughter, and her children or descendants of her children living at her death,” he conveyed certain land “ unto said Florence W. Eastman and her children born and to be born, and their heirs and assigns.” Eastman, the husband of Mrs. Florence W. Eastman, made a contract with one Simpson, agent of the Rome Land Company, in which, on behalf of his wife and as next friend for his children, the children of Mrs. Eastman, he agreed to sell this land to the Rome Land Company for $3,500. The company paid, under this agreement, the sum, of $1,000 in cash. In order to carry out this contract, .Eastman procured letters of guardianship for his children, and an order of the court of ordinary authorizing him to sell their remainder interest in this property; and a sale -was accordingly had, and Mrs. Eastman became the purchaser of her children’s interest for the sum of $1,000, none of which was paid. The Rome Land Company refused to take the property from her, having doubts as to the title being good. This bill was then filed by Mrs. Eastman for -herself, and her husband as next friend of their minor . children, to compel specific performance of the contract . above referred to by the Rome Land Company.

Upon the trial of the case, the court decreed that the Rome Land Company specifically execute the contract; that Mrs. Eastman make a deed conveying to it the premises with warranty title (inasmuch as the whole legal title was vested in her), upon payment of $2,500, for which judgment was rendered in her favor, with costs; that a lien be declared upon the property that Mrs. Eastman may have at her death, in favor of such children as she may then leave ; that Eastman, the guardian, and his security, be held liable for the sum of $1,000 at the death of Mrs. Eastman; and that the title to the property be relieved of all equities and encumbrances, and vest in the land company. This decree is excepted to by the Rome Land Company.

1. We think that the sale of the children’s remainder interest by order of the court of ordinary, under the circumstances, was contrary to public policy and void. A guardian or administrator cannot sell property of the estate in his hands as such, to carry out a private arrangement made beforehand, as in this instance. This court has held that “a private contract made with a guardian for the purchase of the ward’s land for a stipulated price, at a future public sale, under a proper leave from the or, dinary, is contrary to public policy.” Downing et al. vs. Peabody, administrator, 56 Ga. 40, and cases there cited, Code, §§1828,2566. This case illustrates the necessity for the law. Here these children are deprived of their remainder interest in the property; their mother, who is forty-three years of age, gets all the property brings, except $1,000, which they are to get at her death, she havthe use of it for her life. Under the facts in this record, the father could not make this sale to the wife, and we dó not think that the wife got the title of the children in their remainder interest, and she was therefore in no condition to make a deed to this property to the land company.

2. ¥e think, furthermore, that under the bargain made by this company, they had a right to a conveyance from the wife of her interest in the property, and the right also to a conveyance from the children of their interest in the property; and the tender on the part of Mrs. Eastman was not a fulfillment of that contract; and for-that reason, they had a right to decline to take the deed.

We think, therefore, that the court erred in its decree requiring specific performance of this contract by the defendants.

Judgment reversed.