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Bazemore vs. Davis.

certain negro slaves and certain promissory notes, "together with the right, profits and rents, issues and increase, that may arise or accrue out of the aforesaid land and negroes," in trust for the use and support of his wife, Sarah Disharoon, during her natural life, and to the maintenance and support of such children as she may bear to him, the said William H. The deed further provided that said property should remain her separate estate during her natural life, then to such children as she might bear to the said William H., and not be subject to the payment of any subsequent debt which might be contracted by the said William H., nor subject to be sold or conveyed by him; but that the right and title to the same should be in said trustee subject to be used by the said William H. and the said Sarah during the continuance of the coverture, for their benefit and advantage, and for the purposes before mentioned. This deed was recorded on August 1st, 1842.

William H. Disharoon died leaving a widow and one daughter, Amanda, the defendant to this case.

One Peyton Reynolds succeeded Miller as trustee under the aforesaid deed. At the April term, 1848, of Twiggs superior court, on the petition of Sarah Disharoon, by her trustee, an order was passed authorizing such trustee to sell at public or private sale, the land described in the aforesaid deed, “ the proceeds to be invested in real estate as may seem most advantageous by said trustee.” This land brought $ 100 00. To this sum

” was added a like amount of $100 00, alleged to have been saved from the income of the aforesaid trust property, after providing for the support of the beneficiaries. With the $800 00 thus raised, on February 8th, 1850, was purchased from Harvey Moseley, as trustee for Lucinda S. Barclay, all that portion of a lot of land known and distinguished as lot number six, in the southwestern range, according to the plan of the city of Macon, in Bibb county, containing two acres more or less. This conveyance did not follow the terms of the Disharoon deed, but was made to Peyton Reynolds, trustee of Sarah Disharoon and the heirs of William H. Disha

roon.

Bazemore vs. Davis.

On June 10th, 1851, the mayor and council of the city of Macon conveyed to Reynolds, trustee, all that piece of land “known as the advance front to lot number six, in the southwestern range,” etc. The title to this advance front (a strip of land ten feet in width taken from the adjoining street) was vested in strict accord with the Disharoon deed. This deed was made under an act of the general assembly and an ordinance passed in pursuance thereof, authorizing such conveyances of street or common to the owners of land abutting thereon.

Sarah Disharoon having married one Henry B. Page, on December 10th, 1851, Reynolds, as her trustee, in consideration of $2,000 00, conveyed the aforesaid lot number six, with the advance front thereto, to one Job Taylor. This deed described the advance front as follows: “That portion

“ or parcel of land known as the advance front to said lot number six, and deeded to the said Peyton Reynolds, trustee as aforesaid, by J. H. Washington, mayor of said city of Macon, on June 10th, 1851.” To it was answered the following consent:

her

“ GEORGIA-BIBB COUNTY.

“I, Sarah Page, hereby consent and agree to the making, executing and delivering the above and foregoing deed, freely, willingly, and of my own accord hereunto set my hand and seal, this tenth day of December, 1851, (Signed)

“SARAH | PAGE. [L.s.). “In presence of

“ BENJAMIN H RUTHERFORD,

“ KEELIN COOK, J. I. C. “ Recorded November 2d, 1853."

mark.

On October 8th, 1856, Charles H. Carden, as executor of Job Taylor, conveyed a portion of lot number six, with the advance front, to John Hollingsworth. Deed recorded May 2d, 1857. There was no reference in this conveyance either to the Disharoon trust deed or to the deed from Mosely, trustee, to Reynolds, trustee. In describing the property the advance front was referred to as follows: "Including the advance

Bazemore vs. Davis.

front to said lot, deeded by the city of Macon to Peyton Reynolds, as trustee."

On June 23d, 1863, John Hollingsworth conveyed to Martha Satterfield "all that part of lot of land, situate and being in the city of Macon, and known as part of lot number six, in the southwestern range of the city of Macon, including the advance front to said lot, deeded by the city of Macon to Peyton Reynolds, trustee, the said part of said lot being eighty-two feet front on Oglethorpe street, and running back to back line of said lot one hundred and seventy-six feet, more or less."

This last description covers the property in controversy. From Satterfield, this portion of lot number six, with advance front, passed by successive conveyances, immaterial here, to complainant, Martha Davis, who purchased January 16th, 1865.

On October 26th, 1869, Amanda Bazemore brought actions of complaint against the various purchasers of the sub-divisions of the aforesaid lot number six, and amongst them, the complainant, for the recovery of said property. To the declaration against complainant was attached the following abstract of title:

“The above described property was purchased by Peyton Reynolds, acting as trustee, with the proceeds of a trust fund created by William H. Disharoon, for the use of Sarah Disharoon during her life, with remainder to plaintiff after the death of said Sarah. The said property was sold by said act

. ing trustee without authority of law. The life tenant is dead, and plaintiff repudiates said sale.”

In response to this action complainant filed her bill to perpetually enjoin the same. The main ground of equitable interference upon which she relied was that the proceeds of lot number six had been invested in a plantation in Houston county, and other property, of which the defendant had enjoyed the benefit. She set forth her paper title, and submitted that it was good even at law. She also alleged that valuable improvements had been made upon the property in

Bazemore vs. Davis.

controversy since the sale made by Reynolds, trustee, all of which defendant was claiming in her action at law, together with mesne profits; that equity could more readily dispose of these matters than a court of law.

Defendant answered that by inadvertance or want of skill in the scrivener, the deed from Mosely, trustee, was made to Peyton Reynolds, trustee of Sarah Disharoon and the heirs of William H. Disharoon, instead of to the uses and trusts covered by the original trust deed from Disharoon to Miller; that in the conveyance to Taylor, and in the chain of title down to the present holders of said property, the deed from the mayor ard council of the city of Macon is referred to, thus bringing full notice of defendant's rights to the purchasers. She admits that the Houston county plantation and a place near Macon were purchased by Reynolds, trustee, in part with the proceeds of the aforesaid lot number six, but denies that she ever ratified such sale. She recognizes no liability to account for any portion of the money received by Reynolds, trustee, from such sale, or for improvements placed thereon by the purchasers. Asserts that she never assented to their erection, and that they were not placed there on the faith of any act or word of hers. Alleges that complainant has placed no improvements on her lot since her purchase, and that as she has deeds, with warranty, from all those through whom her title descended, she is fully protected.

The 1st, 20, 3d, and 5th points passed on by the court, will be sufficiently understood by reference to the head-notes bearing such numbers.

The 4th point arose as follows: After counsel for defendant had commenced his argument, and while in the midst thereof, after carefully inspecting the deed from Harvey Mosely, as trustee, to Peyton Reynolds, as trustee, of date February 28th, 1850, the court, of its own motion, remarked to defendant's counsel, in the hearing of the jury, as follows: “What have you to say why this clause, to-wit: "To have and

, to hold the said lot of land, with all and singular the rights,

Bazemore vs. Davis.

members and appurtenances thereof whatever to the said Harvey Mosely, trustee as aforesaid, being, belonging, or in any wise appertaining, with the remainder and remainders, reversion and reversions, rents, issues and profits thereof to the only proper use, benefit and behoof of him, the said Peyton Reynolds, trustee, etc., as aforesaid, his heirs, executors, administrators and assigns in fee simple,' did not convey the legal title 10 Harvey Mosley in trust for Peyton Reynolds, and why it was that the words did not vest the whole title absolutely in Peyton Reynolds, and for what purpose the word 'administrators' was inserted after 'Peyton Reynolds' if not for that?”

6th. In reference to the deed embracing the post-nuptial settlement made by Disharoon executed in July, 1842, and recorded soon thereafter, it was contended by the complainant that not having been again recorded under the provisions of the act of December, 1847, such record did not operate as notice of its terms, etc., to any one, for any purpose. Also, that if not sustained in this, then such record constituted constructive notice only in relation to the property therein conveyed, and not in relation to purchases made by the trustee with the proceeds thereof. The court sustained both of these positions and so charged.

7th. It was contended on the part of the defendant that the deed from Mosely, trustee, to Reynolds, as trustee for Sarah Disharoon and the heirs of William H. Disharoon, was notice to Taylor, the purchaser from Reynolds as trustee for Sarah Disharoon, of an estate for life in the aforesaid Sarah, with remainder to her daughter, the only child of the said William H. The court charged that such deed vested the title in said Sarah and her said daughter jointly, as tenants in common, and that Taylor was charged with notice only of that trust.

8th. The defendant further insisted that as the deed from the mayor, etc., of Macon, vested the title to the advance front in Reynolds, as trustee for the said Sarah for life, with remainder to her daughter, the defendant, in the same manner as the property covered by the Disharoon marriage settlement

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