dissenting.
I dissent from the judgment of the majority of the court in this case.
The point has been decided virtually by a unanimous bench of this court directly in the teeth of the judgment-now rendered. 65 Ga., 724. A lien precisely like- this had been ordered by the chancellor at chambers to be placed on property in that case.; and to pay that lien a sale of part of the property covered by it was directed to , be made by the chancellor at chambers. If that lien were no lien at all, of course the court was wrong in having it, paid. It was no lien, if neither the trustee could make it himself, which I do not dispute; nor the chancellor do it or authorize it done at chambers, which I do dispute. But my brethren hold that the chancellor could not at chambers authorize the trustee to make the mortgage, and therefore it is void.
If so, in the 65th Ga., 724, this court affirmed a decree to pay a void lien out of trust property, which decree was had, too, at chambers. It is clear that the court as then constituted did not think the lien void, and therefore did not think that it was perpetrating, the absurdity of enforcing in equity a void thing, that is a wholly dead thing, and bringing it to life and having it made so lively as to be paid out of trust property.
It is remarkable, too, that the parties in the case of 65th Ga., 724, and the case before us now are substantially the same; that the lien was created on the same property in the two cases, and that authority was given by the same able and experienced and distinguished Judge Cole to-create the lien in both cases. “Stare decisis” is too-*798.sound and vital a doctrine to all the interests of society to allow me to give my sanction to a departure from its application to any case, but:where it is sought to nullify ¡it in a case which springs out of .the very same facts and attached to the same property, and affects the same litigants, it strikes me as going beyond all reason.
But if it were a new question, I should hold that the -chancellor at chambers had power Where the facts were not in dispute, as is the case here, to authorize the conveyance set out in this record, and precisely similar to that which this court directed to be paid in the case in 65th Ga., 724, the case of Iverson, trustee, et al., vs. Saulsbury, trustee, et al.
What is the statute? I refer to the case in the 65th, and the opinion there reported, for reference to all the sections of the Code which bear on the power of the chancellor to direct the salé of trust property at chambers. It seems to me, that on the principle that the greater includes the less, the power to order the sale would convey with it the power to convey with the' right to redeem or to mortgage property. Otherwise whenever the trust éstate became involved to support starving beneficiaries, .the chancellor could not relieve it except by sale of the corpus, though the rental when due, or the crop when manured, could easily have' satisfied a lien if the same judge- could have authorized its creation without parting forever with the title. The position is that the general ássémbly meant to empower the chancellor at chambers to kill the trust estate, to destroy all the corpus, but in no event to preserve it by empowering the trustee to put a little lien thereon, when it was clear to his" judicial mind that the mortgage would be satisfied by the income as soon as due and the entire corpus be saved.
Did the codifiers and the legislature do so absurd a thing? Certainly not, all reason would reply; and when-we look at what'they did as written and printed, it will *799be seen that they did; precisely' what reason wquld lead us to conclude that they should have done.
Section 2327 of the Code is in these words:
“A trustee, unless expressly authorized by the act creating the trust, or with the voluntary consent of all the beneficiaries, has no authority to sell or convey the corpus of the trust estate, but such sales must be by‘virtue of an order of the court of chancery, upon á regular application to the same. Such application, may be made to the judge in vacation on full notice to. all parties in interest, and the order for such sale may be granted at chambers, the proceedings to be recorded as above provided on application for appointment of trustees.” It will be seen that the restriction.! is. upon the trustee himself, neither bo sell or convey, but the power is given to the chancellor ;to-auth.orize the act, and then it may be done. It is true that the section afterwards employs the words “such .salesbut the spirit of the act is undoubtedly the selling •. or conveying alluded to in the restrictive words above. Now, a mortgage is a conveyance; i.t is a deed, in some .cases even in this state, in all .ftaaqsfelsewhere almost, it passes title, and the mortgagee, enters and uses the fruits, of ..possession until the debt is paid.
. So that, if not from the words of .the statute, from its reason and its spirit, the legislative mind is seen to be that without . authority from the .beneficiaries, or from the donor in the trust paper, a trustee cannot sell or. convey .any of the corpus of the trust: estate, unless he shall procure authority to do so from another source of power, to-wit, a court of equity. There are but three modes known to our law by which h¿ can sell or convey — in any sense of the latter word — any part of the corpus of an estate entrusted to his management. One is where it is .so nominated in the terms of .the trust deed or will by .the creator of the trust; .the second is where alb the beneficiaries assent to it; and the third is where, the power not being in the deed or will,. ánd the beneficiaries, *800or some of them, withholding assent, the chancery powers of government are allowed to interpose and to grant the power. In cases where the terms of the trust do not give the power, and where any one beneficiary refuses assent, it is absolutely necessary from the wants of society and the vicissitudes incident to all human life and fortune, ■to vest authority somewhere for relief. Taxes must be paid, and the income may not pay them, from some disaster to the crop if in the country, or from fire if in a city. Shall the corpus be sold to pay them, and is the remedial power of the chancellor restricted to the sale alone ? ■The fire damages, but does not destroy, the tenements in • a city, and repairs are absolutely necessary, or stores re•main untenantable and unrented. Must the valuable land and the tenement standing thereon be sold to raise money to repair, and is the chancellor confined to that mode of ■raising it, and may he not put, or authorize to be put, on that land and damaged tenement a lien to be paid when the repair is made and the stores again rented and the rent collected? If such be the law, it is.a bad law and very disastrous to the corpus of trust estates. In the cases put they cannot be preserved at all, but must be sold and sacrificed in a damaged condition, and the proceeds of the sale at such sacrifice be reinvested at much loss to the corpus.
To preserve a trust estate, to supervise its management, to hold the trustee to the line of duty for the purpose of •preserving its corpus for the benefit of the beneficiaries, is an elementary branch of equity jurisprudence; and yet it is- now held that equity cannot preserve it by creating a lien or. mortgage on it. which it clearly sees the income ■will pay when due, but must sell it or part of it, whether ■divisible advantageously or not, to save the beneficiaries from want of the necessaries of life, or to preserve part ■of the corpus at, a ruinous sacrifice of another portion thereof.
But it may be:said that the judgment of the majority *801of the court is not that equity cannot authorize the mortgage, but that the chancellor at chambers cannot do so. Such is not the statute, and it would be quite disastrous to trust estates if it were the law.- -
Shall parties wait six months or more for the regular term of court, and lose all this time, before repair and re-rent can be made, or is a court of equity always open for such purposes as these % I invoke again the statute law as testimony. By section 4221 of the Code it is enacted : “ All proceedings ex parte, or in the execution of the protective powers of chancery over trust estates, or the estate of the wards of chancery, may be presented to the court by petition only, and such other proceedings be had therein as the necessity of each cause shall demand.”
By the next section, 4222, it is enacted: “A court of equity is always open, and hence the judge in vacation and at chambers, may receive and act upon such petitions, always transmitting the entire proceedings to the clerk to be entered on the minutes or other records of the court.” Thus it is manifest that our law does provide a speedy remedy in a court always open for the purpose, and before a judge at chambers with full power then and there to act on just such a petition as that on which chancellor Cole acted in this case for the preservation, as he adjudicated arid concluded all issues thereon, of the trust estate and for the necessities of the cestuis que trust; and thus it appears that my venerable and distinguished friend knew what he was doing, and his jurisdictional power in law conferred by statute to do the act of authorizing the conveyance or mortgage deed which is the subject matter in litigation here.
In whom does the law repose chancery powers in a case like this ? In the breast of an honest and incorruptible judge alone.
No jury is necessary; because none is provided for in that court of conscience which is “ always open ” in the language of section 4222 of the Code above cited. Juries *802are only provided at the regular terms, and afe only important under our system where facts are disputed ; but in a case like this, where one beneficiary Was of age and agreed to the facts, and the other was approaching his majority and appeared by guardian ad litem and also agreed to them, no jury was necessary. For authority to appoint the guardian ad litem in such a case, see section 4224, in the same chapter of the Code, where it is enacted: “ If minors are interested, and they have no guardians, guardians ad litem must be appointed and notified before the cause proceeds.”
The facts being all agreed to by both beneficiaries, I submit that the judge at chambers was just as competent and fully as able to decide the equitable principles applicable to those facts, as the same judge would have been had he been on the bench. In the one case he sat in a chair in his room and adjudicated and decreed; in the other he would have been on the bench, and there he would have adjudicated and decreed the same thing. In both cases the facts before him would have been identical; being the same man, his view of the law and equity applicáble to them would be the same; and in both cases he alone would have acted. I see no reason but much injustice in reversing the judgment of Judge Simmons that this mortgage debt authorized by this open court at chambers ought to be paid by this trust property; and also seeing to my mind with equal clearness that the case of Iverson, trustee, et al. vs. Saulsbury, trustee, et al., 65 Ga., 724, virtually covers and controls this, I am left no alternative but, with entire respect for my colleagues, to dissent from their judgment, so that it may not be fixed as law beyond the power of a majority court to reverse it hereafter.