authority, upon the judges of the superior courts, acting in term or vacation. This is especially pertinent, as the order of sale in this case was applied for by a summary petition under the statutory jurisdiction of equity.

Sections 4863 and 4864 of the Civil Code of 1895 (or sections 4221 and 4222 of the Codes of 1873 and 1882), upon which the defendant in error lays stress in support of the order, read as follows: "All proceedings ex parte, or in the execution of the protective powers of chancery over trust estates, or estates of wards of chancery, may be presented to the court by petition only, and such other proceedings be had as the necessity of each cause shall demand." Section 4863. "A court of equity is always open, and hence the judge in vacation and at chambers may receive and act on such petitions." Section 4864. To clearly ascertain the meaning of the "protective powers of chancery over the estates of wards of chancery," as used in section 4863, it is necessary, in the first place, to refer to the inherent jurisdiction of equity in this respect. From what has already been said as to the extent of the inherent jurisdiction of equity for the protection of infants and their estates, and making them wards of court for these purposes, and the inherent jurisdiction of equity to decree a sale of infants' legal estates in real property for reinvestment, which are two entirely distinct subjects, one of which exists, and the other does not, there can be but one logical answer; and that is that there is nothing in these sections of the Code which authorizes a judge of the superior court, in term or at chambers, on a substantive petition, to order the sale of infants' legal estates in real property for reinvestment. The cases of Sharp v. Findley, 71 Ga. 654, and McGowan v. Lufburrow, 82 Ga. 523, 9 S. E. 427, which are relied on by the defendant in error to support the order of sale in this case, under section 4863 of the Civil Code, are not in conflict with the views we entertain, and do not apply to the facts in the case at bar. The case of Sharp v. Findley, in which the executor and all the devisees joined in the petition, was grounded upon the impossibility of carrying out the provisions of a will. In such a case equity would entertain inherent jurisdiction by will, and declare a sale of the property to protect the beneficiaries, under its ordinary jurisdiction over trusts (Sharp v. Findley, 59 Ga. 730; Marble Co. v. Stegall, 90 Ga. 237, 15 S. E. 806); and the judge of the superior court is expressly given the same jurisdiction by statute (Codes 1873, 1882, § 4214; Civ. Code 1895, § 4855). Hence it was held that this statute, in connection with section 4221 of the Codes of 1873 and 1882 (Civ. Code 1895, § 4863), would authorize the judge at chambers to pass the order of sale in that case. The case of McGowan v. Lufburrow, in which the petition was also presented by the executrix and all the devisees, was for the sale of a part of the testator's estate for the immediate payment of trust debts, in order to protect the

rest of the estate from clamorous creditors. As this was to protect an estate to which the executrix held the legal title in trust for such purposes, equity would have entertained jurisdiction for this purpose under its ordinary Jurisdiction over trusts; and hence, too, this is why the sale in that case was also held to be legal under the section of the Code last cited; and it was absolutely immaterial, so far as the jurisdiction was concerned, wheth er the order was signed by the judge in term or at chambers, because his power in either case was the same. In Blake v. Black, 84 Ga. 399, 400, 11 S. E. 494, Chief Justice Bleckley classes the cases of Sharp v. Findley and McGowan v. Lufburrow as cases involving the protection of equity over trusts; and the writer, who delivered the opinion in the case of McGowan v. Lufburrow, so designates that case, and distinguishes it from the right to sell the legal estates of infants for reinvestment in the case of Taylor v. Kemp, 86 Ga. 185, 12 S. E. 296. And the further contention, in behalf of the defendant in error that when Justice Trippe remarked in his opinion in the case of Milledge v. Bryan, 49 Ga. 397, that the order in that case was passed by the judge below several years before the Code went into operation, he doubtless had in mind the change made by the above section of the Code, is also error. The subject-matter of the case of Milledge v. Bryan was whether a passive trust for infants, before the Code, conveyed to them the legal estate, under the operation of the statute of uses; there being no dispute, if it did, that the judge had no power to order a sale of such estate. He decided in the affirmative, in accordance with all authority. Consequently his remark, no doubt, had reference to the Code making a passive trust for minors an executory trust during their minority, which was not the law before the Code, and hence that, if the order of sale in Milledge v. Bryan had been made since the Code, it would have been legal, because in the exercise of a jurisdiction over the trust estate of minors. See Askew v. Patterson, 53 Ga. 213, 214, where Milledge v. Bryan is distinguished on this point.

The sections of the Code now being considered have been frequently construed by this court, but the court has never gone to the extent assumed in behalf of the defendant in error. In Iverson v. Saulsbury, 65 Ga. 729, Justice Jackson, delivering the opinion of the court, said that they, with the two succeeding sections, forming one chapter, stand together. To quote his words: "These four sections are embodied in chapter 6, tit. 25, pt. 3, Code 1873, and stand together. They appear to vest in the chancellor, at chambers, full power over trust estates in respect to the removal of trustees, the sale of trust property, and the investment of trust money. In the exercise of these great powers, chancellors should be cautious, and see that the case is clearly made out, and that their wards are protect. ed, and their estates are preserved, and their rights protected, just as, in open court, and

before a jury, it would be their duty to see that the same rights are protected." Chief Justice Bleckley's opinion in Blake v. Black, 84 Ga. 392, 399, 400, 11 S. E. 494, also shows that they have relation to trusts. And in Harvey v. Cubbedge, 75 Ga. 794, Justice Blandford, delivering the opinion of the court, said they were codified from the act of February 20, 1854, which authorizes judges of the superior courts, in term or at chambers, to pass upon matters of trust by petition. Of course, it does not necessarily follow from this that the judge, in terms or at chambers, is restrained from passing on proper petitions to authorize a sale of the legal estates of infants, when a court of equity has obtained control of the property in a pending cause within its jurisdiction, or when they can exercise the power in the manner hereinbefore mentioned, under some one of the ordinary heads of the court's inherent jurisdiction. But the case at bar does not fall within this class of cases. Among the subjects covering the "protective powers of chancery over trust estates or the estates of wards of chancery," as used in section 4863 of the Civil Code, and determined by this court, is the power, upon petition, to appoint trustees to fill a vacancy (White v. McKeon, 92 Ga. 344, 17 S. E. 283); to order the sale of a part of the trust property to relieve the rest from an indebtedness on all (Iverson v. Saulsbury, 65 Ga. 724, 725, 728, 729); to order the mortgage of trust property to protect and preserve the corpus (Iverson v. Saulsbury, 68 Ga. 801, per Jackson, J., followed in Weems v. Coker, 70 Ga. 746; Bolles v. Munnerlyn, 83 Ga. 727, 10 S. E. 365; Pease v. Wagnon, 93 Ga. 363, 20 S. E. 637; and Wagnon v. Pease [Ga.] 30 S. E. 900); to order the sale, in whole or in part, of property of adults and minors acquired by devise, where the legal title remains in the executors, when it is impossible to carry out the trust provisions of a will (Sharp v. Findley, 71 Ga. 654; Blake v. Black, 84 Ga. 392, 399, 400, 11 S. E. 474; and Marble Co. v. Stegall, 90 Ga. 237, 15 S. E. 806), or when it is necessary for the payment of estate debts and legacies (McGowan v. Lufburrow, 82 Ga. 523, 9 S. E. 427, and Blake v. Black, supra); and to protect a ward of chancery by compelling a trustee to comply with a prior order of court to pay over money for the support of the ward, arising out of the latter's trust property (Obear v. Little, 79 Ga. 386, 4 S. E. 914). And among other powers by proceedings ex parte and upon petition, as shown by the cross references to other parts of the Code made by the codifiers in the margin to section 4863, are the appointment and removal of trustees (section 3164), the sale of trust property (section 3172), the investment of trust funds in stocks in which a trustee is not authorized by statute to invest in his own discretion (section 3180), and the passing of interlocutory orders in equitable suits (section 4847), which may include the setting aside of a sum of money out of a fund involved in the litigation for the support of the minor parties. So that there is

no reason or authority upon which to base the claim of the defendant in error that sections 4863 and 4864 of the Civil Code authorize the judges of the superior courts, in term or at chambers, to order a sale of the legal estates of infants in real property for reinvestment. And, when this power of sale is given by statute, it has been held to be beyond the jurisdiction of the court to authorize an exchange of the property for other property (Moran v. James [Sup.] 47 N. Y. Supp. 486), and especially, as was asked for in the petition, and granted in the order, in the case at bar, for stock in a corporation (Perin v. McGibben, 53 Fed. 96, 97). And any authority conferred to sell the property for the maintenance of the infant would not be applicable, because that would be an extinguishment, and not the protection, of the corpus of the estate.

The only remaining sections of the Code conferring power upon the judges of the superior courts, in term or at chambers, to order the sale of property in which infants may be interested, aside from the sale of homestead property, under section 2847 of the Civil Code, and the sale of infants' property, upon application of their guardian, under the act of November 11, 1889, are sections 3172 and 4865 of the Civil Code, or sections 2327 and 4223 of the Codes of 1873 and 1882. These sections relate to the sale of trust property, and to none other; and as it was doubtless under these sections that the petition to sell the property in dispute was drawn, because the trustee applied for the order as trustee for the mother and children, it is unnecessary to confound the unambiguous statutory jurisdictions upon summary petition under these sections with the inherent jurisdiction by suit in a court of equity. In such cases the court or judge exercising jurisdiction by statute is restricted by the power conferred by the statute. Williamson v. Berry, 8 How. 537; Woerner, Guardianship, pp. 232, 233. Under these sections, whatever the judge could do in term he could do at chambers, and whatever he could not do at chambers he could not do in term. In the case of Losey v. Stanley, 147 N. Y. 571, 572, 42 N. E. 8, it was unanimously decided that the lower court, which exercised general equity powers, and which was authorized by statute to order the sale of trust property upon summary petition, had no jurisdiction whatever upon such a petition to sell the legal estate in remainder belonging to infants, or to appoint a guardian ad litem to effect such a sale. And to the same effect is the case of Walker v. Pope, 101 Ga. 665, 29 S. E. 8, in which Justice Fish, who delivered the opinion of the court, said: "The principles of law governing this case are well settled and familiar, and will be readily gathered from the headnotes, read in connection with the reporter's statement of the facts." On pages 667 and 668, 101 Ga., and page 11, 29 S. E., the reporter's statement shows that the executor and alleged trustee brought his petition to the superior court (which was joined and concur

red in by the life tenant, an adult male), praying for a sale of the property for reinvestment in a farm, upon substantially the same allegations set forth in the petition in the case at bar; that a guardian ad litem was appointed for the named children, who were entitled to a legal estate in remainder in the property; that the judge of the superior court granted the order to sell; and that a sale was made under the order. The headnotes show that the only reasons the plaintiffs (the children) failed to recover in that case wereFirst, that those who were capable of understanding their rights ratified in writing the said sale of the property and the disposition of the purchase money, without moving to disaffirm the same within a reasonable time after reaching their majority; and, secondly, that the youngest child, who also signed the ratification paper, but who was too young to comprehend its purport, although held entitled to recover within seven years from the death of the life tenant in a several action, could not recover in a joint action with the others, whose title had been tolled before the commencement of the suit. In this court, as the judges have almost invariably passed the orders at chambers, the question has often arisen as to the power of a judge of the superior court at chambers to order a sale of the legal estates of infants for reinvestment under the sections now being considered, or by statute generally before the act of November 11, 1889, and has as often been decided in the negative. See Pughsley v. Pughsley, 75 Ga. 95; Rogers v. Pace, Id. 436; Taylor v. Kemp, 86 Ga. 185, 12 S. E. 296; McDonald V. McCall, 91 Ga. 305, 18 S. E. 157; and Fleming v. Hughes, 99 Ga. 450, 27 S. E. 791. These cases are directly in point, and are unquestionably sound in their conclusions. They establish a principle as firmly as any principle can be established. There is not one decision of this court adverse to them, and they therefore form a rule of property in this state which has existed for many years. When these decisions thus denied this power to the judges of the superior courts at chambers, they also, in legal effect, denied the same power to the said judges in term, when acting under the statutory jurisdiction by summary petition, because each possesses the same power,— one no more nor less than the other. It would therefore be anomalous to hold that this statutory jurisdiction gives the judge in term the power to sell the legal estates of infants for reinvestment, and confines the judge at chambers to a sale of trust estates, espe cially when a court of equity is without the inherent jurisdiction, as we have declared, to order the sale of an infant's legal estate in real property for reinvestment, except in the instances we have specified; and there can be no doubt that in making these decisions this court had in mind the provisions of section 4863 of the Civil Code, as well as of section 4865, which have stood together in the Code for the last 36 years. That such is true is shown by the case of Taylor v. Kemp, 86 Ga. 185, 12 S. E. 296, where the decision in the

case of McGowan v. Lufburrow, which was made under the provisions of section 4863, principally, was upheld for the purposes of that case, but was denied and distinguished as to the facts in Taylor v. Kemp, and also by the case of Fleming v. Hughes, which cites the case of Taylor v. Kemp, with others, and denies the jurisdiction without relying upon any special section of the Code. There is nothing in the case of Town Co. v. Cothran, 81 Ga. 366, 367, 8 S. E. 737, when properly read and considered, that can conflict with the cases above cited, which exist in an unbroken line. On page 366, 81 Ga., and page 737, 8 S. E., Chief Justice Bleckley held that the original order to sell in that case could not bind the infant remainder-men, because, according to Hill v. Printup, 48 Ga. 452, infant beneficiaries in a trust estate must be made parties. On page 367, 81 Ga., and page 740, 8 S. E., in connection with the attempted confirmation proceedings, in which the infant remainder-men were made parties, he said: "It is urged that this order of confirmation cured all defects in the title to Freeman, and this might be so, perhaps, had the judge not been disqualified;" and he no doubt had in his mind at the time what the rule would have been, in accordance with Hill v. Printup, if the infant beneficiaries in the trust estate in that case had been made parties to a confirmatory proceeding. The minors in the case of Town Co. v. Cothran were not infant beneficiaries in a trust estate, as Chief Justice Bleckley himself held on pages 361-366, 81 Ga., and page 737, 8 S. E.; and hence, if he had decided that they would have been bound by the order of confirmation, had such order been passed by a qualified judge, the ruling would have been contrary to all the cases cited above on the subject of ordering the sale of infants' legal estates by petition under the statutory jurisdiction, and could not have stood against them.

I think the opinion of the majority of the court virtually concedes that a court of equity has no inherent power to order the sale of the legal estates of infants upon a summary petition; but it is claimed that, while this may be true, still, if the court has jurisdiction to order a sale of the trust property, and the trustee applies also for an order for the sale of the legal estate, the court, having acquired jurisdiction for one purpose, will retain it for all, and will grant such relief as it may deem proper in the premises. In other words, it holds that a court of equity has jurisdiction, even upon summary petition, to decree and order the sale of infants' estates for reinvest ment, upon the application of the trustee, when the infants have an equitable interest with others in the life estate, and are the sole owners of a legal estate in the remainder, on the ground that, equity having acquired jurisdiction over the equitable life estate for the purpose of a sale, that, per se, invests the court with the power to retain the jurisdiction to order a sale of the legal estate in remainder also. With great deference to the opinion of my associates. I think that the principle bas

no application to a proceeding such as this. It applies to cases of litigation, where the complainant has an equitable remedy for one purpose, and also a legal remedy touching the subject-matter of the litigation against the defendant, and the complainant seeks to enforce his equitable remedy, in which cases the jurisdiction of equity may be retained to grant full relief, and avoid a multiplicity of suits between the litigant parties. In a word, there must be a controversy between litigant parties before the court, to bring this principle into action or life. See Pom. Eq. Jur. § 181, 223-242, where the whole subject is discussed, with citation to numerous authorities, including some in this state. An examination of the Georgia cases in which the principle has been applied will show that in all of them there was a controversy between the parties, and that equitable and legal rights were involved therein. And the same appears to be true of the decisions of the other courts. The court of appeals of New York, in an unbroken line of decisions, has applied the principle that, where equity has acquired jurisdiction for one purpose, it will retain it to grant full relief to the parties litigant; yet the principle is not applied in proceedings where a trustee applies to a court of equity to sell or mortgage the life estate, and the legal estate in remainder of infants. In fact, the denial to a court of equity of the inherent jurisdiction to order a sale of infants' legal estates arises in many cases where such estates are in remainder after an executory trust extending over and terminating with the life estate. The above principle, then, arises in cases of litigation under the ordinary heads of equity jurisdiction; and as Chief Justice Andrews pertinently said in the cases of Losey v. Stanley, 147 N. Y. 570, 42 N. E. 11, in delivering the opinion of the court, where the trustee, whose estate extended over the life estate, only applied to equity to include in a sale the legal estate of infant remainder-men, "The question of the inherent power of a court of equity to order a sale of an infant's real property, upon the theory of a supposed benefit to him, is quite distinct from • the power of courts, in the exercise of their ordinary jurisdiction, to establish or enforce rights of property between parties to a litigation, whether infants or adults." The supposed difficulty of making a sale of the trust estate for life by one court or jurisdiction, and the sale of the legal estate in remainder by another, is not sound, as is shown by the case of Losey v. Stanley, supra, and many others. The same difficulty arises when a petition is presented to a judge of the superior court at chambers, in this state, to order a sale of a trust estate for life, and a legal estate in remainder. In such cases he can only order a sale of the trust estate. Rogers v. Pace, 75 Ga. 436; Fleming v. Hughes, 99 Ga. 444, 27 S. E. 791. What greater efficacy or sanctity or jurisdiction should be given to the act of the same man when he merely walks from his private chambers into the court room with the order, and immedi

ately signs it there? a case like this. As to the distinction between the exercise, by a court of chancery, of original and inherent jurisdiction, and the exercise, by the same court, of jurisdiction conferred by statute, see Williamson v. Berry, 8 How. 536, 537, and Boswell's Lessee v. Otis, 9 How. 336. These cases rule that, where jurisdiction is given a court of equity by statute, and a proceeding is filed thereunder, the court cannot combine its original and inherent jurisdiction with the statutory jurisdiction. The statutes of Georgia giving courts of equity at chambers jurisdiction to sell trust estates, those courts cannot combine their original and inherent jurisdiction with that conferred by statute, so as to enable them, in chambers, or on a summary petition in term time, to order the sale of legal estates. For these reasons, I cannot agree to the opinion of the majority of the court on the questions above discussed.

None that I can see, in

(106 Ga. 858)

HOLMES et al. v. HOLMES et al. (Supreme Court of Georgia. April 19, 1899.) ATTORNEY AND CLIENT-PURCHASE OF CLIENT'S LAND-TRUSTS-EVIDENCE.

1. When an attorney for a defendant in fi. fa. purchases land of his client sold at a sheriff's sale, and takes a deed to such land in his individual name from the sheriff, the title in the hands of the attorney stands affected with a trust in favor of his principal by operation of law, particularly in a case where an agreement was had between the defendant and his attorney that such purchase should be made for the benefit of the defendant, and an announce ment to this effect is made by the attorney while the property is being offered for sale.

2. When title to realty is thus passed into the hands of an attorney, and a parol agreement is had by the defendant and his children that the attorney should make a deed to two sons of the defendant, so as to enable them to raise money by incumbering or selling a por tion of the property sold, for the purpose of reimbursing the attorney the amount he had paid for the benefit of the defendant, with the understanding among all the parties that after such payment was so made the property should be held by the sons for the benefit of the defendant and his children during his life, and after his death should continue to be the home of his daughters as long as they, or either of them, remained single, and then divided among the children, and when this agreement had been fully carried out by all the parties concerned, and the estate had become ready for distribution among the children under the terms of the agreement, held, the law will imply a trust in the two sons in favor of the beneficiaries provided for in the parol agreement

(Syllabus by the Court.)

Error from superior court, Oglethorpe county; S. Reese, Judge.

Action by Carter Holmes and others against Joshua Holmes and others. Demurrer to petition sustained, and plaintiffs bring error. Reversed.

W. M. Howard and S. H. Sibley, for plaintiffs in error. H. McWhorter, for defendants

in error.

LEWIS, J. The plaintiffs' petition, as amended, presents substantially the follow

ing case: Plaintiffs and defendants were children of James Holmes, late of Oglethorpe county, deceased. In 1873, upon a judgment obtained against James Holmes for about $200 or $300, a fi. fa. was issued and levied upon about 200 acres of land belonging to the defendant, and worth some $2,000. In the litigation which resulted in this judgment the defendant James Holmes was represented by W. G. Johnson as his attorney at law, and for professional services rendered by said Johnson the defendant was due him a fee of about $100. At the time of the judgment the plaintiffs and defendants were all of age. It was understood and agreed among them with their father that an effort would be made to redeem the land from the lien of the judgment at the sale to be had thereunder, for the purpose of saving the property, or as much thereof as possible, as a home for the father during his life, and also as a home for all his single daughters (four in number) as long as they remained single and lived upon the place; after the father's death, and the marriage or abandonment of the place by all the daughters, the property should then be sold, and the proceeds divided equally among the children. An understanding was accordingly had with the attorney, W. G. Johnson, to bid off the property, and to hold the sheriff's deed as security for his fee, and also for the amount he was to pay in satisfaction of the judgment and costs of sale. Accordingly, when the property was put up by the sheriff for sale, the attorney announced that, if it did not bring too much, he would bid it in for the defendant; and this deterred others from competing with Johnson in his bid for the property. It was knocked off to him for a small sum. It was agreed that Johnson should deed the property to two of the sons of James Holmes, the defendants in this case, who should raise the money necessary to pay Johnson by a sale or other disposition of some portion of the land. Accordingly a deed was made by Johnson to the two sons in 1874. As proceeds of the sale of part of the land, they paid Johnson about $350, which satisfied him for his fee and the money he had paid the sheriff. In compliance with the agreement between the father and the children, the father continued to live on the land until his death, the following year. After that the single daughters remained upon the land, occupying the same as their home; some of them subsequently leaving after their marriage, and two of the others occupying the place as a home until the year 1896, when one died and the other moved away. Under the parol agreement had with the famfly, the property was then ready for sale and distribution. During all this time one of the defendants had never occupied the premises, but the other remained upon the place. It did not appear from the petition, however, that there was any adverse holding by him against the other beneficiaries provided for in the parol agreement until after the last

daughter left the place. It was alleged that the defendants then claimed that the proper. ty was absolutely theirs, and that they refused to carry out the agreement entered into with the other members of the family. Their insolvency is alleged. The plaintiffs charge that they are entitled to an equal share with the defendants in the premises, both under the agreement above set forth, and by virtue of inheritance from their father; and they ask that the defendants be required to specifically perform their contract, and for general relief, etc. A demurrer to this petition was sustained by the court, which judgment plaintiffs assign as error in their bill of exceptions.

1. The special ground in the demurrer which seems to be relied upon by counsel for defendant in error is that the "petition seeks to alter, vary, and modify the written deed of these defendants, which conveys said land to these defendants in fee simple, and establishes the title of said premises to these defendants." We will first consider the nature of the title of Johnson when he obtained the sheriff's deed to the land. Manifestly, under the allegations of the petition, Johnson was acting in the capacity of an agent of the defendant in fi. fa.; the understanding being that he should purchase the land for the benefit of the defendant, so as to place the latter in a position where he might redeem his property. Growing out of this understanding, and the declarations made by Johnson, at the time of the sale, that he was acting for the defendant in the matter, the property brought far less than its value. It is a wellrecognized principle of law that when one person, as agent, agrees to buy land for his principal, but takes the deed to himself, the case is not within the statute of frauds, but the title, in the agent's hands, stands affected with a resulting trust in favor of his principal, by operation of law. See Chastain v. Smith, 30 Ga. 96. But, apart from the specific agreement entered into between the attorney and the owner of the land, the law would imply such a trust, growing out of the relation between the parties, of attorney and client. See Crayton v. Spullock, 87 Ga. 326, 13 S. E. 561. Directly in point on the same question, see Pearce v. Gamble, 72 Ala. 341; Baker v. Humphrey, 101 U. S. 494; 3 Am. & Eng. Enc. Law (2d Ed.) 340 (5), and authorities cited. The effect of Johnson's title, then, was simply to secure him for a debt, includ ing his fee and the amount of money expended by him in relieving the property from the lien. Evidently the equity of redemption was in the defendant, and he had a right to reclaim his land upon payment to Johnson of the amount due him. The two sons received their deed from Johnson with full knowledge of all the facts as to how Johnson held the title to the property. Indeed, they were parties to the identical agreement by virtue of which Johnson acquired the title. Manifestly, therefore, they acquired no better title to