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Archer et al. vs. Heidt.
trial is asked for. The memorandum is not made by Heidt, nor is it authorized by him. It is a memorandum of the witness himself; and the naked point is this, where a witness testifies on the trial that he cannot remember a fact, but afterwards refreshes his memory and does remember that fact, ought a new trial to be granted, if that which refreshes him be in writing, made by the witness, but the paper on which it is made is drawn from the custody of the party against whom he so refreshes his memory? We think not.
. We do not think it can be put on the ground of mistake. The witness does not seek to correct a mistake, but to refresh his memory. Heswore to nothing before; he simply did not remember. If he had sworn that Heidt did not acquiesce in the new line, that he opposed it, and now sought to correct the mistake, then it might possibly do; but even then it would be dangerous. The case is wholly unlike the case of the Rolling Mill against The State, 54 Georgia Reports, 635. There the witness had positively sworn that only a certain number of miles had been laid in iron, and by actual measurement, since the trial, had ascertained that he was wholly mistaken by five or six miles. There could be no possible misapprehension about the mistake in that case. This is no mistake at all, but a failure to remember so as to swear on the point. This case comes rather within the ruling of this court in the case of Jones vs. McCrea, 37 Georgia Reports, 48. There the witness had worn that a party took possession of lands in 1852, and since had refreshed his mind that it was in 1853, and gave his affidavit to that affect, and the party himself admitted that such was the fact. On a bill filed for a new trial, the court refused it. This is a much weaker case than that. Besides the issue, the main issue here, on which title turned, was the true line. That was testified about pro and con and Heidt's acquiescence in the line of 1866, was, too, the subject of inquiry, and witnesses were examined thereon, and this witness was interrogated about that acquiescence. We decline for these reasons to disturb the judgment refusing the new trial.
Guilmartin & Company et al. vs. Stevens et al.
L. J. GUILMARTIN & COMPANY et al., plaintiffs in error, vs.
FRANK E. STEVENS et al., defendants in error.
1. Where property was conveyed in trust for the sole and separate use of the
wife of the trustee for and during her natural life, with remainder to her children, with the provisions that the trustee might, by deed, in which the life tenant should voluntarily join, sell, mortgage, exchange, or otherwise dispose of, the property or any part thereof, reinvesting the proceeds in
other property real and personal, subject to the same uses and trusts : Held, that a mortgage on the trust property, executed by the trustee to secure
debts contracted by him in his business as a merchant, was not within the
purview of the power embraced in the trust deed. 2. A letter from an attorney at law to a trustee advising him not to mortgage
the trust property, was inadmissible in a contest between the mortgagee and the cestui que trusts involving the power of the trustee to execute such instrument, the said attorney being himself a competent witness, and it not appearing that notice of the contents of such letter was brought to such
mortgagee. 3. An immaterial error is no ground of new trial.
Trusts. Power. Husband and wife. Mortgage. Evidence. New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1874.
The letter referred to in the second head-note was from Frank H. Miller, Esq., the attorney employed to draw the power signed by the life tenant, to the trustee. It was as follows:
“ AUGUSTA, GA., July 28, 1868. “MR. A. STEVENS, Pulaski House, Savannah :
“Dear Sir-Your telegram of the 27th did not reach Augusta until 7.50 last night, and I did not receive it until this morning.
“ Enclosed find such an instrument as you require. Not having access to the deed, I could not prepare the instrument as particularly as I could desire, but I think it will answer.
“I took it to Mrs. Stevens for execution, who expressed some surprise that you had not mentioned the matter to her. She, however, signed it. If you can avoid having to mort
Guilmartin & Company et al. vs. Stevens et al. gage this property, I am inclined to think it will be best not to do it.
Yours truly, (Signed)
“ FRANK H. MILLER." The remaining facts are reported in the decision.
HOOK & WEBB; John T. SEWMAKE; HENRY W. HILLIARD, for plaintiffs in error.
FRANK H. MILLER, for defendants.
WARNER, Chief Justice.
This was a bill filed by the complainants against the defendants, in which they allege that they are the cestui que trusts and remaindermen, under a certain trust deed executed by James L. Seward, on the 29th day of April, 1864, to Andrew Stevens, conveying to him, the said Andrew, certain described property therein mentioned, in trust for the benefit of complainants; that the said trustee had mortgaged said trust property to Guilmartin & Company, and to L. J. Dupree, in violation of the terms and provisions of said trust deed, which mortgages have been foreclosed and levied on the trust property. The prayer of the bill is for a perpetual injunction restraining the sale of the trust property under the mortgage fi. fas. levied thereon, for the removal of the trustee, and for such other relief as their case may require. On the trial of the case, the jury found a verdict sustaining the injunction prayed for. The defendants made a motion for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendants excepted.
1. The property conveyed by the trust deed was a settlement of land in Thomas county which was conveyed by Seward to Stephens, in trust “to and for the sole and separate use, benefit and behoof of Matilda C. Stevens, the wife of the said Andrew Stevens, for and during the term of her natural life, free from the debts, liabilities or contracts, of her present or any future husband, with remainder at her death to her children then in life, or who have issue also at that time, the Guilmartin & Company et al. vs. Stevens et al. issue of any deceased child, to take the parent's proportionate share. But should the said Matilda C. Stephens die without leaving any child or issue of a child alive at that time, then with remainder to the said Andrew Stevens and his heirs forever: Provided, always, that the trustee for the time being may, at any time, by deed, in which the said Matilda C. Steveus voluntarily joins, sell, mortgage, exchange, or otherwise dispose of the premises aforesaid, or any part thereof, reinvesting the proceeds in other property, real or personal, subject to the same uses and trusts herein before set forth. And also, from time to time, in a similar way, sell and convey, or otherwise dispose of, any other property held under the provisions of this «leed.” It appears from the evidence in the record that the trust property was mortgaged by Stevens to Guilmartin & Company for an advance of $3,000.00 to enable him to carry on his business as a merchant. This mortgage was executed by Stevens and his wife, he signing her name thereto under a power of attorney from her authorizing him to do so. It also appears from the evidence in the record that Stevens was indebted to Dupree the sum of $1,400 00, and that Dupree had instituted proceedings on the equity side of the court for the seizure of his goods in trade, to secure the payment thereof. To incluce Dupree to release his goods from seizure for his indebtedness to him, Stevens executed another mortgage on the trust property, which was also signed by Mrs. Stevens; and these are the two mortgages which have been foreclosed and the mortgage fi. fas. levied on the trust property which the complainants seek to enjoin. The main controlling question in this case, on the statement of facts disclosed in the record, is whether the mortgages on the trust property were made for the objects and purposes contemplated and authorized by the deed creating the trust? The trustee had the power under the trust deed to sell, mortgage, exchange, or otherwise dispose of the trust property, provided his wife, the said Matilda C., voluntarily joined him therein, for the purpose of reinvesting the proceeds in other property, subject to the same uses and trusts herein before set forth. What were Guilmartin & Company et al. vs. Stevens et al. the uses and trusts therein set forth in the trust deed? To and for the sole and separate use, benefit and behoof of Matilda C. Stevens, the wife of the said Andrew Stevens, for and during the term of ber natural life, free from the debts, liabilities or contracts of her present or any future husband, with remainder, at her death, to her children, etc. The obvious and fair legal construction of the trust deed is, that the trust property was not to be sold, mortgaged, exchanged, or otherwise disposed of with the voluntary consent of Mrs. Stevens, only for the benefit of the trust estate, and not otherwise. If there could be any doubt as to the power of the trustee to sell or mortgage the trust property for any other purpose than for the purpose of reinvesting the proceeds in other property for the use and benefit of the trust estate, that doubt is removed by the provision in the deed, “And, also, from time to time, in a similar way, sell, and convey, or otherwise dispose of, any other property held under the provisions of this deed.” One of the main objects of the trust, as declared on the face of the trust deed was, that the property conveyed therein, should be secured for the sole and separate use of Mrs. Stevens during her natural life, with remain«ler to her children after her death, free from the debts, liabilities, or contracts of her husband. The mortgagees, at the time they took their respective mortgages on the trust property, had full knowledge of the trust deed and the terms thereof. The debts which the mortgages were given to secure, were not debts created for the benefit of the trust estate, but were the individual debts of Stevens, the husband and trustee, contracted by him, to carry on his business as a merchant, which business, at the time the mortgages were taken, was not, to say the least about it, in a very safe or prosperous condition. The wife cannot bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband: Code, section 1783. In our judgment, the mortgages on the trust property, made under the circumstances, and for the purposes, as disclosed by the evidence in the record, were not authorized by the deed cre