Bleckley, Chief Justice.
There can be no doubt that, unless expressly authorized by the instrument creating the trust, a trustee has no power, without the voluntary consent of all the beneficiaries, to sell and convey the corpus of the trust property. He must obtain an order of sale from a court of competent jurisdiction, or from the judge of the superior court, upon a proper application. Code, §2327. The deed which constituted Goff trustee for his wife and children was silent as to any sale or power to sell. And there is no suggestion that any order of sale was applied for or granted, and no proof that the beneficiaries consented. The case turns, therefore, at its present stage, altogether upon the plea of former recovery.
That plea sets up a judgment or decree by the superior court in a case brought in the county court and carried by appeal to the superior court, the appeal being founded on consent of parties. These parties were Goff, as trustee for his wife and children, on the one side, and Jackson on the other. The wife and children of Goff were not parties, and were not before the court. The purpose of the suit was to recover of Jackson a sum as purchase money of the land now in controversy. Pending the appeal in the superior court, Jackson filed an equitable plea in which he offered to pay the amount claimed, upon good and sufficient title to the land being decreed to him as against the trustee and the beneficiaries of the trust, and prayed that the title be decreed to be in him on compliance with this offer. A verdict was rendered, confirming the sale by Groff, as trustee, to Jackson, and declaring that, on the payment of $250 with interest and costs, the title be decreed to be in Jackson free from the trust deed and from the title of the trustee and-the beneficiaries. On this verdict a decree was entered and signed in substantial conformity to the terms of the verdict; and this is the decree pleaded as a former recovery. There was evidence that Jackson had complied substantially with the decree on his part, but none whatever showing that the beneficiaries of the trust had ever received or enjoyed any of the money, or had assented to the decree or in any manner ratified it. So far as evidence went, it was directly to the contrary.
We need not say whether this adjudication would have been binding upon the beneficiaries of the trust had it been made in an action brought by the trustee originally in the superior court. We are clear that as the suit went by appeal from the county court to the superior court, the jurisdiction of the latter over it, as to subject-matter, was no larger than was the jurisdiction of the former; and it is certain that a county court could not, upon an equitable plea, or upon any other pleading, determine and control the title to land, or confirm a sale made by a trustee and fix title in the purchaser, by mere force of the adjudication. In trying an appeal from a county court, the superior court can deal with no question of merits except such as could have been raised in the county court, and can render no final judgment except such as the county court had jurisdiction to render. Greer v. Burnam, 69 Ga. 734.
The plea, construed in the light of the record attached to it as an exhibit, was obviously insufficient as an answer to the present action. This being so, whether the evidence sustained it or not, the court should not have directed a verdict for the defendant. Though the proper practice was for the plaintiffs to demur to the plea and have it stricken, their failure to do this would not justify directing a verdict manifestly wrong, and finally disposing of the case on an issue which should not control it. Judgment reversed.