Bank of Eton v. Owens , 146 Ga. 464 ( 1917 )

Hill, J.

1. Where property was bequeathed by will to one in another State, and the will according to the laws of that State was sufficient to make a valid devise of personalty (having only two witnesses), the title of the devisee thus obtained will be recognized in this State after the personalty has been, brought into this State. Ellington v. Harris, 127 Ga. 85 (56 S. E. 134, 119 Am. St. R. 320).

(a) But where the devise was to A for life, with remainder to the children of A, and the executor in the other State sold the personalty in the other State, and from the proceeds of the sale advanced money to A and her husband, taking from them a mortgage on other separate property of A in the estate, conditioned upon the repayment to the executor of the amount so advanced to A and her husband when A should die, and after having thus procured money from the executor A invested it in lands in this State, to which she took an absolute fee-simple deed, the title thus acquired by A to the lands in this State was hers absolutely, unaffected by any right of the remaindermen mentioned in the will.

2. Under the evidence in this case all the property in controversy descended to C. T. Owens, the defendant in fi. fa., and Osmo Owens, his son, the claimant, as heirs at law of Coliutta L. Owens at her death.

3. Where a father and his son inherit property as tenants in common from a deceased wife and mother, and the father takes possession of all the property owned by himself and son and uses it for his own benefit, the son in an equitable accounting has a lien on such property for his claim thereon, superior to liens placed on his interest by the tenant in possession receiving the property. Civil Code, §§ 3724-3727.

4. Where in such case the father has property in his hands belonging to the son, although he is not his guardian, yet in an equitable accounting between the father and son, on the trial of a claim case in which an ancillary equitable petition is filed setting up the rights of the father and son, the father has the right to a set-off against the son for money expended for the latter while a minor, where it is made to appear that the father was' insolvent and unable to maintain and educate his son, and that such expenditure was necessary for his maintenance and education. Maddox v. Oxford, 70 Ga. 179.

5. Applying the foregoing legal principles to the facts of this case, no ground of the motion for a new trial in either bill of exceptions requires a reversal.

6. The verdict was supported by the evidence.

Judgment affirmed on both bills of exceptions.

All the Justices concur.

On the trial the court directed a verdict finding the property subject, and submitted to the jury the question of the right of the claimant to have his lien set up for rents, as tenant in common, as against the lien of the mortgage fi. fa., as well as the amounts for land sold by C. T. Owens. The jury returned a verdict finding the property subject according to the direction of the court, and finding a lien in favor of the claimant for $3,000 against the interest of C. T. Owens levied upon. Both the Bank of Eton and Osmo Owens filed motions for a new trial, which were overruled, and each excepted.

Q. N. King and W. E. Mann, for plaintiff. W. W. Sampler, M. C. Tarver, W. C. Marlin, and G. G. Glenn, contra.-