Adams v. Butler , 135 Ga. 405 ( 1910 )

Beck, J.

(After stating the facts.) On the face of the petition it appears that there is an outstanding title to the property which the petitioner sought to have partitioned. While the fact that lands, bought with the proceeds arising from the sale of other lands which had been set apart as a homestead and which are sold for the purpose of reinvestment, are impressed with the character of homestead lands, so far as relate to creditors and to the beneficiaries of the homestead, even where the deed to the land purchased with the proceeds arising from the sale of the homestead property is taken in the name of the wife alone, it does not necessarily follow that after the death of the wife, and the attainment of their majority by the minor beneficiaries under the homestead, a complete and perfect equity to the lands, the equivalent of a legal title, is vested in the-head of the family who was the owner of the land originally set apart as a homestead. Mrs. Georgia Adams, the wife of Thomas Adams, the father of petitioner, was vested with the legal title to the property in controversy. Whether or not she had the equitable title as well, after the extinguishment of the homestead interest, would depend upon the circumstances under which the deed was executed. Whether or not it was executed under such circumstances as would, under the provisions of § 3160 of the Civil Code, vest her with the equitable title, is not here for decision at this time; nor is the question as to whether the deed to Mrs. Georgia Adams, conveying the land which was bought with the proceeds of the sale of the homestead, was executed under circumstances showing, mistake relievable in equity, so as to authorize a decree revesting the title to the property in the estate of Thomas Adams, the father, presented in this record; and it could not have been presented in the proceedings as they stood when before the court below, inasmuch as there were no proper parties before the court or pleadings authorizing a decision of that question. We go no farther in this decision than to affirm the ruling of the court below, being of the opinion that upon the statement of facts in the petition which was dismissed there was no such showing of title in Thomas Adams, the father, or his estate, as to have a partition of the lands between the petitioner and the other children of Thomas Adams Sr.; and the state and character of that title should be ascertained and fixed before the property is divided under partition proceedings or brought to sale in case a division in kind .is not practicable. Judgment affirmed.

All the Justices concur.