1. Under the pleadings and evidence the trial court did not err in directing a verdict finding that the petitioners were entitled to have the guardian's deed, dated a blank day of March, 1934, set aside and canceled, and to have the title to the lands decreed to be in them, and to recover mesne profits.
2. The charges of the court on the question of mesne profits, set forth in the corresponding division of this opinion, were not erroneous for any reason assigned.
3. The evidence was sufficient to support the special verdict finding generally in favor of the petitioners.
4. The court did not err in overruling a motion of the petitioners to modify the portion of the decree which allowed the defendants to be credited with the amount they had paid out in taxes.
Nos. 16122, 16124. APRIL 16, 1948. REHEARING DENIED MAY 14, 1948. James Robert Hall and Miss Annette Hall, a minor, by and through her natural brother and next friend, James Robert Hall (the latter person being sui juris), filed in Elbert Superior Court against Mrs. Warren P. Crick, G. P. Hall, and also against Mrs. Susie Jim Hall (now Mrs. Rucker), individually and as guardian of James Robert Hall and Miss Annette Hall, a petition which alleged substantially the following: *Page 657
T. B. Hall was the father of two sons, one of whom is the principal defendant, G. P. Hall, who in turn is the father of the defendant Mrs. Warren P. Crick. Hoke Smith Hall, the other son of T. B. Hall and a half brother of G. P. Hall, was the father of the petitioners. The defendant Mrs. Susie Jim Hall Rucker was the mother of the petitioners, and the wife of Hoke Smith Hall. The petitioners are the sole surviving heirs of Hoke Smith Hall. On April 27, 1918, T. B. Hall executed his deed to the defendant G. P. Hall, as trustee, conveying a described tract of farm land, known as the Old Carlton Place, containing 171 1/2 acres in trust for the benefit of the petitioners' father, Hoke Smith Hall, who was then 12 years old, until he reached the age of 21 years, at which time the trustee was to turn over to petitioners' father, Hoke Smith Hall, a life estate in the land, with remainder over to the lawful heirs of Hoke Smith Hall. On the back of the trust deed there was endorsed the following: "I hereby accept the trusteeship as specified in the within deed. (Signed) G. P. Hall." The trust deed was duly recorded on May 7, 1918. T. B. Hall, the grantor, died in April, 1931, and Hoke Smith Hall died on June 19, 1932. After the death of Hoke Smith Hall, the life tenant, his widow (Mrs. Susie Jim Hall) continued in possession of the real estate until March 10, 1934. Prior thereto, on March 3, 1934, the widow of the life tenant posted a bond, signed by herself as principal and G. P. Hall as surety, in the sum of $600 with the ordinary, and at the March term of that court she was appointed natural guardian for the petitioners. On March 7th she filed a petition with the ordinary, stating in effect: (a) That suit was pending in the superior court against her wards to cancel the trust deed made by T. B. Hall; (b) that she believed the suit should be compromised as a doubtful claim, and informed the court that by deeding the property as guardian to Mrs. Warren P. Crick, who was to supply the funds for the claimant, G. P. Hall, she could realize for the benefit of her wards, the sum of $300; (c) that she believed it was doubtful if she could prevail in the pending suit, and that it was to the best interest of her wards that the same should be compromised on the offer made as therein set out. She prayed for an order allowing her to compromise the claim for the reason and in the *Page 658 manner set forth. On the same day the ordinary passed an order to the following effect: sufficient proof being shown that the petition ought to be granted, it is ordered that the guardian be allowed to compromise the claim on the payment to her of the sum of $300 in cash, and she is hereby authorized to execute and deliver a deed to the property to Mrs. Warren P. Crick for the reason set forth in the petition. Mrs. Crick did not have a suit of any kind pending against the petitioners or any suit claiming title to the real property or any other type of claim on the land. The suit pending in the superior court against the petitioners as wards of their mother, referred to in the guardian's application for an order to sell and denominated as a "doubtful claim" which should be "compromised," was the then-pending suit of G. P. Hall, as administrator of the estate of T. B. Hall, which suit was not a doubtful claim, and the representation in the application for an order to sell the land, that it was doubtful if she could prevail, was not true. The so-called compromise was not to the best interest of the wards. The guardian did not file a valid written application for leave to sell before she executed her deed to Mrs. Crick. Thirty days' notice that an application would be made for leave to sell was neither published in the gazette in which the county advertisements were published, nor in any other paper at all, not even once a week for four weeks before the hearing. On March — 1934, the guardian pursuant to the aforesaid proceedings executed a quitclaim deed conveying the real property to Mrs. Crick. The recited purchase-money consideration was $300, and the quitclaim deed was recorded March 10, 1934. The sale by the guardian to Mrs. Crick was not at public outcry. The real property was not vacant or wild lands, and it was not legally subject to any private sale. The acts of the guardian deprived the petitioners as wards of their title to the real property and also deprived them of the possession thereof and the rents and profits therefrom. The said acts were disadvantageous to the petitioners and placed the defendants, G. P. Hall and Mrs. Crick, in possession of the property to reap the economic benefits of the rents and profits from the land. On March 10, 1934, the date the quitclaim deed was recorded, the petitioners, James Robert Hall and Annette Hall, were respectively *Page 659 9 and 5 years of age. The guardian was not at that time an experienced business woman and she was in bad health. She was widow charged with the support of herself and her two minor children, and had to work in a mill on an hourly basis. Under such circumstances, she executed her quitclaim deed to the farm land. The many litigations of G. P. Hall involving the land also influenced her in the attempt to dispose of it. In a suit filed January 17, 1931, by Hoke Smith Hall, against G. P. Hall, the defendant at an interlocutory hearing on January 24 was enjoined until further order of the court "from exercising further control or management over the property described in the trust deed," and from trespassing upon the property. A subsequent suit filed March 10, 1931, by G. P. Hall, as administrator of the estate of T. B. Hall, against Hoke Smith Hall, seeking cancellation of the trust deed was dismissed on October 11, 1932, because it appeared that the defendant was deceased, and that he only had a life estate in the property in litigation. In 1933 G. P. Hall, as administrator of the estate of his father, filed a suit against James Robert Hall and Annette Hall, who were then minors. This action was dismissed March 12, 1934, on motion of the plaintiff, and is the suit which was referred to as a doubtful claim in the application of the guardian for leave to sell the property. By the tactics outlined above, G. P. Hall overreached the guardian and illegally took an unscrupulous advantage of her as well as of the petitioners. G. P. Hall has been discharged as administrator and he never did administer on the real property as a part of the T. B. Hall estate. The sale in March, 1934, by the guardian to Mrs. Crick was void, and did not legally divest the petitioners of their title and right to possession of the real estate. With defendants in possession and paying State and County taxes, if any they have paid, the reasonable rental value of the farm land for the period since March 10, 1934, to date would be $1725. The value of the rents and profits realized by the defendants exceeds the purchase-money, together with interest at 7 percent, which they paid to the guardian in March, 1934, as principal and interest to this date would aggregate less than $600. G. P. Hall has failed and refused to follow the directions from his father with regard to *Page 660 the property which directions were set out in the deed of trust, and he has abused the trusts and confidence placed in him as trustee. The conduct of G. P. Hall constitutes a violation by him of the trust and confidence reposed in him, and such conduct has been utterly unbecoming to a trustee or fiduciary, and he has thus wrongfully interfered with the res of a valid and subsisting antecedent trust. G. P. Hall and Mrs. Warren P. Crick have colluded, and they have acted in bad faith in the transactions out of which this cause of action arose. They have been stubbornly litigious and have caused the petitioners unnecessary trouble and expense and have caused them to engage counsel, for which reason they should be required to pay counsel fees of at least $750. The petitioners in asking for equity offer and want to do equity. They want the defendants to have all the equities they are entitled to. They ask that on whatever sums they recover from the defendants the defendants be credited with their purchase-money of $300 together with interest. The petitioners stand ready to reimburse the defendants for the purchase-money and interest in the manner set forth or in any other equitable manner the court may decree. They are ready to do equity and to pay such amount as may be found against them. They prayed for process, cancellation of the quitclaim deed, a decree declaring title to the farm land to be in the petitioners, recovery of mesne profits and attorney's fees, and general relief.
G. P. Hall and Mrs. Warren P. Crick filed an answer, admitting many of the allegations of the petition and denying others. Mrs. Crick by amendment to the answer asked, in the event the jury found in favor of the petitioners, that she be allowed stated amounts paid by her for taxes and permanent improvements.
Mrs. Susie Jim Hall Rucker, who did not file an answer, testified in part: The entire transaction and negotiations for sale of the property at guardian sale were with G. P. Hall. The witness did not prepare the papers or have a lawyer to prepare them. She met G. P. Hall in the bank and he paid her $300 for Mrs. Crick. The witness signed one paper at the bank and then they went to the ordinary's office, where she signed another paper. Her husband had been dead for about a year and she signed the *Page 661 deed because she wanted peace of mind. She was in bad health and did not consider the value of the property. G. P. Hall had brought suit three or four times. She did not want to sell the farm, but she was not financially able to engage counsel to litigate over it. The reasons stated in the petition for leave to sell were not true, but she signed the paper because G. P. Hall told her that it was necessary to do so in order to carry the deal through. There were no wild lands on the farm. In March, 1934, the Old Carlton Place was worth $2000, and after her husband's death the witness rented it out until she signed the quitclaim deed to Mrs. Crick.
G. P. Hall's testimony on this phase of the case was to the following effect: In 1934 he brought a suit, as administrator upon his father's estate, against James Robert Hall and Annette Hall to recover property alleged to have been deeded by his father to Hoke Smith Hall for life with remainder over to the lawful heirs of Hoke Smith Hall. Mrs. Susie Jim Hall sent for him and said she would settle for $300. The witness got an order from the court of ordinary authorizing her to sell the land as guardian for that amount in settlement of the suit. Mrs. Warren P. Crick had $300, which she let the witness have to pay on the land, and the deed was made to her. After execution of the deed the witness went into possession of the land for Mrs. Crick. The witness did not know of the trust deed, and the first time he knew it was on record was about eight months after his father died. In March, 1934, the land was worth $5 an acre. The reason he did not offer the guardian the full market value, was that he already had from $1500 to $3000 in the place before Mrs. Susie Jim Hall got it. He gave her what she asked. The witness had to spend $1500 during his father's sickness, and wanted to break the old trust deed because he had money in the place and his father said he was going to make him a deed.
There was testimony concerning the value of permanent improvements which G. P. Hall placed on the land for Mrs. Crick, and the amount of taxes which he paid for her. The deeds referred to in this suit, together with copies of the papers in the court of ordinary and the pleadings in the other cases involving the land, were also introduced in evidence. *Page 662
The jury, in answering questions submitted by the court, found generally for the petitioners, and a decree was entered in accordance with the verdict.
The defendants' motion for a new trial as amended was overruled, and the case comes to this court for review upon their exceptions to that judgment.
In a separate bill of exceptions the petitioners complain in so far as the trial court overruled their written motion to modify a portion of the decree. 1. The first question submitted to the jury was, "Are the plaintiffs entitled to have the deed from Mrs. Susie Jim Hall, as guardian of plaintiffs dated blank day of March, 1934, to Mrs. Warren P. Crick . . set aside and canceled and the title to said lands decreed to be in the plaintiffs?" The court directed the jury to answer that question in the affirmative, "because under the law and the evidence, the plaintiffs are entitled to the land."
The next question was, "Are the plaintiffs entitled to recover the issues, rents, and profits for the lands involved in this case from the time of the conveyance mentioned above to this date?" The court also directed the jury to answer that question in the affirmative.
The first and second special grounds of the motion for new trial complain that the direction of a verdict answering the above questions in the affirmative was contrary to law, because the evidence raised questions of fact which should have been submitted to the jury. It was further insisted, in reference to the first question, that the court of ordinary had jurisdiction to determine the question of the granting of an order to compromise the Hall suit, as provided in the order, and such a judgment being conclusive, the superior court could not entertain an attack upon the same.
"Where an instrument of writing was executed as a deed, was attested by two witnesses, one of whom was an officer authorized to witness deeds, purported on its face to have been delivered, and was recorded, this raised a presumption of delivery; but this *Page 663 presumption is not conclusive, and as between the parties to the instrument it may be rebutted." Shelton v. Edenfield,148 Ga. 128 (2) (96 S.E. 3); Bracewell v. Morton, 192 Ga. 396 (2) (15 S.E.2d 496); Allen v. Bemis, 193 Ga. 556 (2) (19 S.E.2d 515). "No formal words are necessary to create a trust estate. Whenever a manifest intention that another person shall have the benefit of the property is exhibited, the grantee shall be declared a trustee." Code, § 108-102. "Where, at the request of a grantor, a person named as trustee in a deed which creates a trust enters his acceptance of the trust created, upon such deed, such acceptance presumes conclusively a delivery of such deed by the grantor to the trustee." New South Building Loan Assn. v. Gann, 101 Ga. 678 (2) (29 S.E. 15).
The trust deed in the present case was introduced in evidence. It was dated April 27, 1918, and duly recorded the following May 7. G. P. Hall, the only witness who testified as to the delivery of the trust deed, neither denied that the signature thereto was that of his father, nor did he refer to or deny that the signature contained in the endorsement accepting the trusteeship was his signature. His negative testimony that he had not seen the deed, that the grantor did not deliver it to him, and that the first time he knew it was on record was about eight months after his father died, was insufficient to overcome the presumption that the deed was duly executed and delivered.
The judgment of a court having no jurisdiction of the person and subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it. Code, §§ 110-709, 110-701. Guardians may sell estates of their wards for reinvestment, by order of the judge of the superior court. § 49-203. But "all other sales of any portion of the property of the ward shall be made under the direction of the ordinary, and under the same rules and restrictions as are prescribed for sales by administrators of estates." § 49-205. See, in this connection,Powell v. Harrison, 180 Ga. 197 (178 S.E. 745), involving the petition of a guardian for leave to sell realty as property of her wards for their "maintenance, education, and support." It was there held, in the fourth headnote: "The court's charge that `It is admitted *Page 664 by the counsel for defendant that the citation was not run, and therefore, the order authorizing the sale of this land would be void,' was not erroneous for the reason, as contended, `that the judgment of the court of ordinary authorizing the sale, and a sale in conformity to his orders, was all that was necessary in order for the sale to be valid,' and that `a direct attack on the judgment was necessary, before it could be set aside.'"
In the case under consideration, neither the petition for leave to sell nor the order by the court of ordinary granting such permission made reference to the publication of any notice, and the uncontradicted evidence shows that the entire transaction leading up to the guardian's sale took place in a matter of two or three days, which would have rendered it impossible to have advertised the property. Furthermore, the defendants by their answer admitted paragraphs 32 and 34 of the petition, wherein it was alleged that the sale by the guardian was not advertised, either prior to or after the grant of leave to sell.
Each of the prior suits referred to in the petition, as did the present case, attached a copy of the trust deed as an exhibit. The petition filed January 16, 1932, by Hoke Smith Hall, the life tenant under the deed, against G. P. Hall, alleged that the defendant "duly accepted said trust in writing; that the petitioner was more than twenty-one years of age; and that under the deed the defendant was required to deliver possession of the property to the petitioner. Paragraph 7 of G. P. Hall's answer to that suit was: "That the plaintiff is in possession of said premises under said deed and defendant claims no interest whatsoever in and to the same." At an interlocutory hearing G. P. Hall was enjoined from interfering with the possession of the petitioner. Therefore it appears from the pleadings in prior cases, copies of which were introduced in evidence, that the life tenant thus obtained possession of the premises from the trustee named in the trust deed. The present defendants, G. P. Hall and Mrs. Crick, do not deny that the above possession was held by the life tenant and his widow until execution of the quitclaim deed which is now before the court.
In the light of what has been said, the pleadings and evidence in this case demanded a verdict finding that the petitioners were *Page 665 entitled to have the deed from Mrs. Susie Jim Hall as guardian, dated a blank day of March, 1934, set aside, and to have title to the lands decreed to be in them. It necessarily follows that the petitioners were entitled to recover some amount as mesne profits. Accordingly, the trial court did not err, as complained of in the first and second grounds of the amended motion for a new trial, in directing a verdict in favor of the petitioners on this phase of the case.
2. The third special ground complains of the charge: "Now then, the next question three, `How much,' that is `how much rents, issues and profits are the plaintiffs entitled to recover in this case?' You are instructed, gentlemen, that plaintiffs who recover land in cases such as this are entitled to recover what we call in law mesne profits, which means actual profits of the land accruing to the tenant in possession between the date of the commencement and of the termination of the possession, and includes all damages arising from trespass committed by the tenant in possession during his unlawful occupancy, such as cutting timber and other acts of like character, as well as the actual profits of the land accruing during that period."
Immediately following the above instruction the court charged: "There has been evidence submitted to you by both sides as to the rental value of this land during the various years of this period. Now, you will decide how much rents, issues, and profits the plaintiffs are entitled to recover from all the evidence submitted to you, direct and circumstantial, which illustrates that question to your minds and answer that question so many dollars."
The fourth special ground complains of the charge: "The next question, number 4, `Are such rents, issues and profits to be recovered against Mrs. Warren P. Crick only, or against G. P. Hall only, or against both, Mrs. Warren P. Crick and G. P. Hall?' Now plaintiffs who recover in a case like this are usually entitled to hold, not only the tenant in possession but all others who have participated in putting him or her in possession and who have aided and abetted him or her in an attempt to hold, for such rents, issues, and profits." Immediately following the above instruction, the court stated that it is contended by the *Page 666 petitioners that G. P. Hall and Mrs. Warren P. Crick acted in a scheme and a conspiracy in obtaining the land, and have continued so in occupying it. The court then charged the jury on the law of conspiracy.
There is no insistence that the charge was not a correct abstract principle of law. The exception is based on the contention that the question should not have been submitted to the jury because the evidence failed to show any fraud or conspiracy. The defendants occupied the relation of father and daughter. The undisputed evidence was that Mrs. Crick furnished the money that was used in obtaining a deed from the guardian, and at her request G. P. Hall took possession and looked after the property. He returned it for taxes and made permanent improvements. In looking after the property he did so for himself as well as for Mrs. Crick.
Under the pleadings and evidence, whether mesne profits were to be recovered from only one or from both of the defendants was a proper question, and the submission thereof to the jury together with the charge in connection therewith was not erroneous for any reason assigned.
3. The evidence was sufficient to authorize the special verdict finding generally in favor of the petitioners, and the court did not err in overruling the defendants' motion for new trial as amended.
4. The petitioners, who prevailed generally in the trial court, filed a motion wherein they set forth that in moulding its decree the court did violence to the principles of equity in allowing the defendants affirmative monetary relief against the petitioners for a stated amount representing ad valorem taxes paid on the realty. This insistence is based on the fact that the jury, in answering the sixth question, found that the possession of Mrs. Warren P. Crick and G. P. Hall was not in good faith. In support of this insistence, counsel cite many cases from this State and from other jurisdictions dealing generally with the principle that where defendants are in possession in bad faith they should not be allowed to deduct sums paid out in taxes.
The petitioners in this case offered to do equity and to pay any amounts that the jury might find to be due the defendants. *Page 667 Mrs. Crick by her answer asked that she be credited with taxes in the event the jury found that the petitioners were entitled to recover the land, and that question was submitted to the jury. The same jury which found that the defendants' possession was not in good faith found for the defendants on the question of allowing credit for taxes. It may be that there is some conflict apparent in the answers of the jury to the questions propounded, which if true would constitute a ground of motion for new trial, but no such question was raised in the defendants' motion for new trial. The petitioners, on the other hand, having prevailed generally in the trial court, did not seek a new trial. The court in moulding its decree followed the verdict of the jury. The evidence did not demand a verdict finding that the defendants' possession was in bad faith. Accordingly, there is no merit in the exception to the judgment overruling, the petitioners' motion to modify the decree.
Judgments affirmed in both cases. All the Justices concur.