BECK, J. (after stating the facts as above). The court properly sustained the demurrer. The facts alleged did not make Thomas Mead the trustee of the defendants or of their property. Certainly he was not vested with any express trust, and no implied trust arises from the facts stated. The fertilizers sold to Thomas Mead were sold to him as an individual; the plaintiff did not know his relation to the title to the lands. The petition concludes with a prayer for a judgment against the defendants and also a “judgment in rem against the lands described in the petition." The plaintiff is not entitled to either an account of the fertilizers sold to Thomas Mead. Equally unavailing for a

the account for fertilizers sold to W. T. Strange, “A guardian is not permitted by law to bind the estate of his ward by a contract for the purchase of goods on credit, even though the goods be for the use of the ward and properly classed as necessaries." Fidelity & Deposit Co. v. Rich, 122 Ga. 506, 50 S. E. 338. In the case of Burke v. MacKenzie, 124 Ga. 248, 52 S. E. 653, it is said:

The plaintiff, as transferee, brought suit upon an open account against Gordon Mead and certain other named children of Thomas Mead, as joint defendants, alleging an indebtedness for fertilizers sold by the Farmers' Mercantile Company to Thomas Mead. It was also alleged: The defendants were in possession of three tracts of land, one known as the Smith place, another as the Glisson place, and the third as the Moody place. The title to the land known as the Smith place is in the defendants as the children of Thomas Mead, under and by virtue of a deed from Thomas Mead to his wife and children, executed in 1891. The legal title to the Moody place is in Thomas Mead, "agent," but the beneficial interest is claimed by the defend-personal judgment or a judgment in rem is ants. Petitioner is unable to state in whose name the title to the Glisson tract is, but the beneficial interest in it is claimed by the defendants. All of these lands were, until March, 1910, in the possession and under the control of Thomas Mead. "The said lands constitute what was in the nature of an implied trust estate with Thomas Mead as the trustee or representative of the estate." In January, 1910, Thomas Mead bought of the Farmers' Mercantile Company certain commercial fertilizers, which were intended for use on the lands above described, and which were used thereon during the year 1910 for the purpose of making the crops. The fertilizers were necessary and suitable for the crops. The use of the fertilizers resulted in the improvement of the estate of the defendants. The Farmers' Mercantile Company, in making sale of the fertilizers, had no direct knowledge as to how Thomas Mead held the lands upon which he was engaged in farming, but knew that he was in control of the lands and had the management thereof, and took a bill of sale to certain personal property from Thomas Mead; but "the credit was extended largely on account of the lands above named, which he was in control of." Thomas Mead is insolvent; executions against him were levied upon the fertilizers almost immediately after the sale, and the fertilizers were claimed by the defendants. After they had been sold to Thomas Mead, W. T. Strange, in March, 1910, qualified as the legal guardian of the defendants. He purchased other fertilizers of the value of (Supreme Court of Georgia. $93, and the account for them also is sued upon. The defendants received the benefits of these fertilizers, both in income and in the improvement of their joint estate, and the purchase of the fertilizers was necessary to enable Strange, as guardian, to carry on the farming operations for said minors. A general demurrer to the petition was sustained.

E. V. Heath, of Waynesboro, for plaintiff in error. H. J. Fullbright, of Waynesboro, for defendants in error.

"As a matter of law, guardians of the property of wards are trustees, whose powers over the property of their cestui que trusts are defined by law. Among these powers are not included the execution of a contract binding the estate of his wards.' Howard v. Cassels, 105 Ga. 412 [31 S. E. 562, 70 Am. St. Rep. 44]. See, also, Fidelity Co. v. Rich, supra. The general rule is that trustees are not authorized to create any lien upon the trust estate, except such as is authorized by law. Civil Code, 3186 [3770]. The guardian cannot, by any contract, except those specially allowed by law, bind his ward's property or create any lien thereon. Civil Code, § 2555 [3074]. It is therefore incumbent upon one, seeking to charge the ward's property by a contract of the guardian, to show that the claim set up by him is one which the law specially authorized the guardian to contract and bind the ward's property therefor."

There is no law authorizing the guardian to contract, under the facts alleged in the petition, for the purchase upon credit of the fertilizers represented by the account sued upon.

Judgment affirmed. All the Justices con

cur.

(145 Ga. 563)

LITTLE v. WEST et al. (No. 564.)
Aug. 15, 1916.)

(Syllabus by the Court.)

1. GUARDIAN AND WARD 165-ACTIONS—
ADMISSIBILITY OF EVIDENCE.
Where a guardian encroached upon the cor-
pus of his ward's estate for the purpose of im-
proving the property, and subsequently was
granted letters of dismission, and thereafter his
ward, who had become of age, filed a petition at-
tacking the judgment of dismissal as being obtain-
ed by fraud, and seeking to have an accounting,
the guardian in making expenditures for improve-
and on the trial the bona fides or mala fides of
ments and repairs and in subsequently making
a sale of the property were involved, there was

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 531-537; Dec. Dig. 165.]

no error in permitting him to testify that hecated on South avenue, Atlanta. On Novemmade the improvements after consultation with ber 2, 1904, J. J. West was appointed adthe ordinary in regard to it. A conference with the ordinary, and even the oral approval of the ministrator of the estate of Josie Ostrander, ordinary to the making of such expenditures, and on November 22, 1909, filed in the court would not grant legal authority for that pur- of ordinary of Fulton county his final repose. The testimony just mentioned was admissible only in so far as it bore upon the bona turn, showing that on that day he delivered fides or mala fides of the defendant; but, in to J. J. West, as guardian of Pearl Ostranview of the nature of the issues involved, the der, now Pearl Little, the sole heir at law admission of such evidence for that purpose of Josie Ostrander, the above real estate, towas not erroneous. gether with $79 in cash. J. J. West was appointed guardian of petitioner at the February term, 1909, and acted as such until 2. APPEAL AND ERROR ~730(1) ASSIGN-September 2, 1912, when he was granted a MENTS OF ERROR-INSTRUCTIONS-REQUESTS. discharge. West, as guardian, applied for Even if there were any merit in the assign-leave to sell the above real estate, and was ment of error based upon the refusal of the court to give certain charges as requested, the granted authority to sell on March 3, 1912. assignments are not well taken, in that they The guardian did pretend to sell the real esfail to show that the requests were in writing, tate on the first Tuesday in April, 1912 (April or when they were preferred. 2, 1912), and the purchaser at the purported sale was S. J. West, son of J. J. West, and surety on the bond of J. J. West, guardian, for the sum of $850. The alleged sale was fraudulent, and was carried out in fraud. J. was necessary that the sale take place for J. West, as guardian, represented that it the purpose of maintaining petitioner, which she alleges was untrue, and he knew that it was untrue. He knew that petitioner would in a few weeks become of age, and he hastened the sale of the property in order that his son could buy in same and resell for a much larger sum. The property was bid in by S. J. West, son of J. J. West, and surety on his bond as guardian, when in fact the purported sale was simply a scheme between J. J. West and S. J. West, whereby they could sell the property, buy it in, and resell it for a profit, thereby defrauding and cheating petitioner out of the real value of the property. The

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3013, 3016; Dec. Dig. 730(1).]

3. GUARDIAN AND WARD 30(1), 77, 165— POWERS OF GUARDIAN-ACTIONS-INSTRUC

TIONS.

On the trial of a suit brought by a ward, after obtaining majority, against her guardian, to revoke an order of the court of ordinary discharging the guardian, on the ground of fraud in its procurement, and for an accounting, etc., where in the pleadings and on the trial an order for sale and the sale thereunder of real estate belonging to the ward was attacked as fraudulent, it was error for the court to instruct the jury: "If that is not true, if this petition for the sale was for the support, maintenance, and education, or either one of them, of this plaintiff, or if she requested her guardian to apply to have this property sold for that purpose, why she could not recover, and the sale would be valid."

(a) Primarily the income, and not the corpus, of a ward's property, is to be resorted to for the purpose of education, maintenance, making necessary repairs on the ward's property.

(c) But a guardian is not authorized to sell or incumber the property of his ward for the purpose of erecting permanent improvements on it; or, if he erects permanent improvements on it with his own money, he cannot obtain a legal order of the ordinary, or court of ordinary, to sell it to reimburse himself.

(b) The ordinary may, in his discretion, al-property brought only $850 at the sale, when low the corpus of a ward's estate, in whole or it was worth at least $1,500 to $1,700. Petiin part, to be used for the education and main- tioner had no notice and was not advised tenance of the ward. that the sale would take place, and she did not know that the sale had occurred until some time in June, 1912, when she received notice from the First National Bank of Butte, Mont., that it had a check from J. J. West which it would deliver to her upon the execution of a certain receipt in full of all demands against J. J. West as guardian, etc., and of all her interest in and to the property belonging to her as sole heir of Josie Ostrander. She refused to accept the check or to sign the receipt, and has not received the check nor signed the receipt, for the reason that she is entitled to more than the sum admitted to be due her by J. J. West as guardian, namely, the sum of $239.28.

[Ed. Note. For other cases, see Guardian and Ward, Cent. Dig. $$ 116-130, 327-329; Dec. Dig. 30(1), 77, 165.]

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Pearl Little against J. J. West, guardian, and another. Judgment for defendants, and plaintiff brings error. Reversed.

Pearl Little, formerly Pearl Ostrander, brought suit against J. J. West, guardian of Pearl Ostrander, and alleged in substance as follows:

She is the sole heir at law of Josie Ostrander, deceased. The latter died about 1903 or 1904, leaving an estate in Fulton county, Ga., consisting of personal property and part of land lot No. 43 of the fourteenth district, lo

J. J. West, as guardian, has attempted to file returns which are not true, and to charge her with the sum of $734.25, and other sums to which he is not entitled, and for the expenditure of which he had no authority; nor did he receive any authority of any court for expending said sums, or to charge such sums against your petitioner and against the estate

of Josie Ostrander. On April 6, 1912, two that the house be put in first-class condition days after the alleged fraudulent sale to S. and enlarged. He made application to the J. West, J. J. West sold the property to Mrs. court of ordinary in writing, setting forth Anna Walker Jenkins for the sum of $1,700. | his full discharge of his trust as guardian; While this sale purports to have been by the ordinary made an examination of the S. J. West to Mrs. Jenkins, petitioner charges defendant's accounts and vouchers, and verion information and belief that it was not a fied the truth of the petition; the applicasale by S. J. West, but that it was a sale tion was published once a week for four by J. J. West, acting fraudulently with S. J. weeks in the public gazette where the legal West, and for the purpose of defrauding peti- notices of the ordinary's office are usually tioner. She became of age on May 29, 1912, published; proof was made to the ordinary less than two months after the fraudulent that the ward was of age; and thereupon sale took place. J. J. West, as guardian, letters of dismission were granted by the knew she would soon be of age, and hastened ordinary to the defendant. At the time of the sale in order that he might take advan- his application for discharge he had in tage of her, and sell the property at a low his hands the sum of $239.28, which he deposprice, and resell for his own profit. Under ited with the ordinary, and he caused the the foregoing facts J. J. West has fraudulent- same to be deposited in some solvent bank. ly and illegally obtained his discharge as The sale of the real estate was made after guardian, and he is guilty of a fraudulent obtaining leave of the court of ordinary, and and illegal sale of the property of petitioner; was before the courthouse door, in compli and if it had not been for the alleged fraud-ance with the laws of this state regulating ulent acts, no discharge could have been ap- such sales. He employed an auctioneer to plied for and obtained. Petitioner prays that expose the property for sale, and the price it the order discharging the guardian be revok- brought was as much as it was reasonably ed; that he be required to give a strict ac- worth for cash. It was necessary to sell counting of his acts and doings in the prem- the land in order to pay the expenses incurises; that he account to her for the real val-red by the defendant for taxes, street imue of the property, $1,700; that she have a provements, and repairs and additions to the judgment against him as guardian, as prin- house. He made no allowance in his returns cipal, and against S. J. West, as security, for for commissions which he was legally entithe principal sum of $1,700, with interest, etc. tled to as guardian, nor did he make any S. J. West filed his answer, admitting allowance for counsel fees incurred by him as that J. J. West did sell the property described guardian. In the event of a revocation of the for a cash consideration of $850, but denying order discharging him as guardian, he prays that it was worth more than that, or that that he be allowed to recover the usual comthe sale was fraudulent. He alleged it was missions and counsel fees. legally carried out, and that the property was sold for $1,700 on the installment plan; and he denied that this sale was fraudulent. The land was legally exposed to sale, and after several bids was knocked off to the defendant.

The jury returned a verdict for the defendants. The plaintiff made a motion for a new trial, which was overruled, and she excepted.

Geo. B. Rush, of Atlanta, for plaintiff in error. Bryan, Jordan & Middlebrooks, of Atlanta, for defendants in error.

HILL, J. (after stating the facts as above). [1, 2] 1, 2. Headnotes 1 and 2 require no elaboration.

[3] 3. Exception is taken to the following charge of the court:

"If that is not true, if this petition for the sale was for the support, maintenance, and education, or either one of them, of this plaintiff, or if she requested her guardian to apply to have this property sold for that purpose, why she could not recover, and the sale would be valid.”

J. J. West answered as follows: He did sell the property referred to on the first Tuesday in April, 1912, and the purchaser was S. J. West, his son. The money against which the check was drawn was caused by the ordinary to be deposited in a solvent bank, and letters dismissory were granted to the defendant by the ordinary. S. J. West did sell the property for $1,700, but the sale was made upon easy payments. Defendant denies that there was any fraud in connection with the sale, whereby a fraud was pracIt is contended that this excerpt is error, ticed on petitioner or on the court. The for the reason that a request by the ward real estate referred to was purchased in 1902 for her guardian to sell real estate for her by William Fagan, the plaintiff's father, for support, maintenance, and education would the sum of $200, and when defendant took not justify such sale, unless it was in fact possession of it as guardian there was upon necessary for that purpose. There is nothit a small two-room house in a dilapidated ing that might relieve from error this altercondition, and the defendant was unable to native charge that the plaintiff could not rerent the house, except for a small part of cover, and the sale would be valid, if it was the time, and then only for $ a month. for her support, maintenance, and education, In order to make the real estate produce "or if she requested her guardian to have enough income to pay taxes and assessments this property sold for that purpose." Out

fects in this suggestion. The first is that the record in this case does not show any approval of the annual returns of the guardian, except such as may have risen impliedly from the grant of letters dismissory; and, in the second place, what the ordinary could not originally allow he could not make good by subsequent approval of unauthorized conduct. Of course, the judgment of dismissal of the guardian in this case is a final judgment, and includes anything back of it, unless it can be opened for fraud in its procurement. The judgment granting letters dismissory to the guardian is a bar to any contention as to an accounting back of it, unless it is opened; but if it is opened, so that an accounting can take place, then the question of what items are proper to be allowed arises.

the ordinary's order, that the necessary the guardian made to him. There are two dethings had been shown to authorize it, the defendant introduced no evidence showing the necessity for the sale; and it rests on the letter written by her in 1908 (which was before his appointment as guardian), in which there was some mention of the need of certain funds, and that she needed a sum of money he had on hand as administrator of her mother's estate. She also stated in her evidence that she had been trying to get him to sell for several years, as she did not expect to live in Atlanta again, but did not refer to any special need. This was the only evidence on the subject; and with this evidence alone before the jury, the alternative charge that if there was a real necessity, or she represented there was a necessity, for the sale for the purpose of support, etc., is reversible error. That is not a correct state

ment of the law, because the mere fact that a minor represents to his guardian that it is necessary to have money for clothes, etc., will not per se make it a necessity. It might operate on the question of good faith; or if she represented there were such necessities, and he acted on these representations in good faith, they might estop her from denying that the necessities in fact existed.

But the charge to the effect that, if she simply requested the guardian to make a sale for the purposes of supplying necessities, the sale would be valid, is not a sound statement of the law, and this charge may have caused grave injury. Primarily the income, and not the corpus, of the property is to be resorted to for the purpose of making repairs, or meeting necessary expenses of the property. Possibly the public burdens, such as taxes or street improvements, and the like, might au

The present case furnishes an apt illustration of the impropriety of allowing a guardian to charge the corpus of the estate, except for the purposes permitted by the statute. He has charged the ward's estate with $734.25, exclusive of certain interest charged by him, which he alleges was due to a firm of which he was a member for making improvements on the lot belonging to his ward, which was subsequently sold for $850. Thus an $850 lot, taking its value to be what it brought at the sale, has been incumbered with a debt for $734.25 for its improvement, leaving only the difference (not taking into account the charges made by the guardian for interest) for the owner of the land with the improvement on

it.

The charge of the court, in some respects, was not in accord with what has been said above. There were numerous other grounds of exceptions to charges and refusals to charge, not included in the above discussion. Whether the rulings of the court in all respects were accurate or not as to the matters not dealt with, they do not present reversible error for any of the reasons assigned in the grounds of the motion for a new trial. Judgment reversed. All the Justices con

cur.

(145 Ga. 603)

thorize a sale for their payment, though generally this is coupled with the reinvestment of the surplus, where the application is made to the judge of the superior court. Nor is the question now involved as to whether, if a guardian bona fide expend his own money in betterments which permanently improve the property and increase its rental value, this might furnish an equitable right of reimbursement from rents. Relatively to the - corpus of the property, a guardian is not OLIVER v. EMPIRE LIFE INS. CO. et al. authorized to sell or incumber it for the purpose of erecting permanent improvements on it, or, if he erects permanent improvements on it with his own money, to obtain an order - of the ordinary to sell it to reimburse him. The purposes for which an ordinary may order an encroachment on the corpus of a minor's property are stated in Civil Code, §§ 3060, 3064, 3066, and these do not include a desire on the part of the guardian to build additional houses, or to make permanent improvments or betterments.

་་}

It is contended that what the ordinary might originally allow he might subsequently ratify or confirm, by confirming the returns of

(No. 575.) (Supreme Court of Georgia.

Aug. 16, 1916.) (Syllabus by the Court.) 1. PLEADING 248(4) - AMENDMENT-PETITION-NEW CAUSE OF ACTION.

Where a plaintiff brought an action against two corporations, alleging that the one first organized had issued certain certificates to him, and that it had become merged or consolidated all of its assets to the second, and that there with the second corporation and had transferred had been a breach of the contract contained in the certificates, on account of which the plainposed amendment which alleged that prior to the tiff was entitled to a judgment thereon, a probringing of the suit the plaintiff was preparing and threatening to institute his action for sub

Error from Superior Court, Fulton Coun- guage: ty; J. T. Pendleton, Judge.

Action by A. S. Oliver against the Empire Life Insurance Company and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Z. B. Rogers, of Elberton, and Colquitt & Conyers, of Atlanta, for plaintiff in error. Little, Powell, Smith & Goldstein, F. A. Hooper, and R. C. & P. H. Alston, all of Atlanta, for defendants in error.

HILL, J. Judgment affirmed. Justices concur.

"Said B. H. Tanner hereby excepts the followlands: The back-box timber for turpentine puring timber privileges on the above-described poses in a lease from D. S. Wall to said B. H. Tanner, said lease being four years from date to lease; also all the pine sawmill timber as per certain lease from D. S. Wall to C. M. and F. L. Sweat and cross-tie lease from D. S. Wall to B. H. Tanner, conveying all pine cross-tie timbers."

the owner of whatever had been conveyed Tanner became, by successive transfers,

in the Sweat lease. Davis-Sears Lumber All the Company began cutting timber in 1907, as appears from the record, claiming under Tanner. In this suit to enjoin the Davis-Sears Lumber Company, B. H. Tanner was made a party defendant, defending with them.

(Supreme Court of Georgia. Aug. 16, 1916.) was not a conveyance of land subject to the