Saulsbury, Respess & Co. v. Iverson

73 Ga. 733

Opinion

Blandford, Justice.

When this case was here, as reported in 68 Ga., 790, a majority of this court held, “ While a chancellor at chambers, on full notice to all parties, may order a sale of trust property, he has no power to grant authority to a trustee to mortgage a trust estate, and a mortgage so given will not, bind the cestuis que- trust."

* When this case was returned to the count below, the plaintiffs in error, who were the defendants to the bill, filed a cross-bill, in which they alleged that Mrs. Juliet Iverson, who was one of the cestuis que trust, was the life tenant in the property mortgaged, and that she was sui juris as to this property mortgaged, and-that, as she had consented to the bill filed by the trustee and consented to the order of the chancellor authorizing - the trustee to mortgage the trust property, she was bound thereby, and that the mortgage should be for eclosed so far as her interest in the property extends. The court below refused to allow this. It is clear that if Mrs. Iverson owned a life estate in this property, she might charge the same with any debt or obligation of her own and that she might mortgage the same for sued debts; but in the case before us, it does not appear that she consented that her trustee should mortgage her separate life estate in the property, but the consent was that the whole property? including her life estate and the remainder interest of her children in the property, might be mortgaged to pay the debt of plaintiffs in error; she might have thus consented and been unwilling that her separate interest in the property should have been mortgaged to pay this debt; besides, the decision referred to declares that the mortgage given does not bind her. The bill in the case referred to in 68 Ga., 790, was specially demurred to, on the ground that Mrs. Iverson could mortgage this property, and that the mortgage was good as to her, and this court then held the demurrer was bad. Whether this decision be right or wrong, it is the law of this case ; it is res adjudioata.

Plaintiffs further insist that plaintiffs’ debt was created for the benefit of the trust estate, and they ask that it be decreed to be a charge on the same; but it is replied that the debt was created in 1866, and the cross-bill was not filed until 1884, and that the same is stale and became barred by the statute of limitations. This is certainly a good reply to the cross-bill, and while we unanimously disapprove of the decision which is referred to as made in this case, our obligation to the law of this case, as rendered in that decision, obliges us to affirm the decision and judgment of the court below. ■ -

Judgment affirmed.

The principle ruled in 68 Ga., 790, has been since overruled in Weems, trustee, vs. Coker, 70 Ga., 746. (Rep.)