Kiser & Co. v. Dozier , 102 Ga. 429 ( 1897 )

Fish, J.

1. It has been held by this court, and we think correctly, that investments of the income derived from property which has been set apart as a homestead go to enlarge the corpus of the estate which produced it. Wade v. Weslow & Co., 62 Ga. 562; Johnson v. Franklin & Whitney, 63 Ga. 378. This is true although the head of the family may have contributed his labor in managing the homestead estate, and thus material^ increased the amount of income which would otherwise have been realized. Kupferman v. Buckholts, 73 Ga. 778. For a “debtor can not be forced to apply his labor to the extinguishment of his creditor’s claim.” King v. Skellie, 79 Ga. 151. It follows that a creditor can not subject to the payment of a debt due by his debtor property which the latter, as the legal representative of the beneficiaries of a homestead estate, has purchased and paid for exclusively with income derived therefrom.

2. Of course, a mere pretense that a fund coming into the hands of the debtor was derived, as income, from his management of the exempted property, will not suffice to defeat the rights of creditors. Staples v. Keister, 81 Ga. 772. Nor will property be wholly exempt when purchased by the head of a family, when it appears that it was paid for by him partly with income yielded by the homestead estate and partly with means derived from another and independent source. Vining v. Officers of Court, 82 Ga. 222. Where, therefore, the title to property thus purchased is taken by the debtor in his individual capacity, a subsequent conveyance to himself as the head of his family will not ojierate to vest in him, as such, a legal title to the property, which will support an ordinary claim, unaided by equitable pleadings, based upon the ground that such property thus became an absolute. addition to the homestead estate. On the contrary, no greater interest therein than that which the beneficiaries of the homestead could equitably assert would pass, in any event, as against creditors; and it would seem, in the absence of equitable pleadings setting up the rights of such beneficiaries, the head of the family could not successfully resist an effort on the part of creditors to subject the property to the payment of claims held against him individually. In this connection, see: Morris v. Tennent, 56 Ga. 577; Kupferman v. Buckholts, 78 Ga. 778, 781; King v. Skellie, 79 Ga. 147; Vining v. Officers of Court, 82 Ga. 223. In the present case no pleadings of the nature above indicated were filed, praying that there might be an equitable apportionment or partition of the property which was the subject-matter of dispute, so as to add to the homestead what fairly belonged to it, leaving the balance subject to levy and sale. The presiding judge was not, therefore, called upon to instruct' the jury .as to the law relating to this subject, nor is it incumbent upon us to say more in regard thereto. As this case must undergo .another investigation, it is still possible for the pleadings to be ;so amended as to properly present the issue in question; and doubtless, if this is done and the “case is tried in the light of the law as herein announced, exact justice as between the respective parties will result.

3. The main contention of the plaintiffs in the court below was, that the property levied upon had not (as was insisted by the claimant and as was testified to b}^ him) been paid for exclusively with the rents, issues and profits arising from the Iiomestead estate. In this connection, certain notes and mortgages executed by him, purporting to evidence transactions had with various persons in his individual capacity regarding ■property which he testified had been paid for entirely out of assets belonging to the homestead estate, were offered in evidence by the plaintiffs, but were excluded by the court. We think error was committed in rejecting these documents. Not ■only were they admissible as having some evidentiary value •of their own concerning the question at issue, upon the idea ■that they constituted admissions against interest, but they bore directly against the credit of the claimant, who testified .as a witness in his own behalf, and thus tended to cast suspicion upon and discount his testimony as to other matters.

4. It was strenuously insisted by counsel at the trial, that the conveyance executed by the claimant to himself as the head of a family, and which was made but a short time before the rendition against him 'individually of the judgment -.the plaintiffs were seeking to enforce, was illegal and void because made with intent to hinder, delay and defraud creditors. The court did not, however, present this contention to the jury. In view of all the evidence introduced at the trial, this became a vital issue in the case, and it was. the duty of the court to have instructed the jury as to the law relating thereto, notwithstanding no written request to charge thereon was presented by counsel for the plaintiffs. Furthermore, we rule, in this connection, that the court committed error in not permitting plaintiffs to introduce evidence as to the value of the property which was included in the conveyance just mentioned. Having raised the issue of fraud, they were entitled to have this transaction closely scrutinized by the jury; and to that, end it was their right to demonstrate by competent evidence, if they could, that the value of this property was out of all proportion to any amount which could possibly have arisen as rents, issues and profits of the homestead estate during the' period within which it was asserted by the claimant he had realized from that source the funds with which the property conveyed was purchased.

On the whole, we feel that the plaintiffs were not afforded a full and fair opportunity to have the merits of their side of' the controversy duly weighed and passed upon by the jurjq and that justice demands that they should be awarded a new-trial. Judgment reversed.

All the Justices concurring.