Raley v. Ross , 59 Ga. 862 ( 1877 )

Bleckley, Judge.

1. Raley died having both a deed from Ross, conveying to him certain lands in fee simple, and a bond for titles, of subsequent date, covering the' same lands and others, with the purchase money of the whole unpaid. He had possession of the whole under the bond, and this being so, his holding was not adverse to Ross. 12 Ga., 450; 14 Ib., 70; 17 Ib., 600. The presumption is, that in some proper manner, by rescisión or otherwise, the title became revested in Ross at or before the execution of the bond. Only on the basis of such a presumption, no fraud or mistake being alleged, can the existence of the bond and the fact of possession under it, be accounted for. As matters stood at the death of Raley, he was estopped from denying title in Ross, and from asserting title, through the deed, in himself. He was not “ seized and possessed ” of the land at the time of his death, (Code, §1763), and therefore no right of dower in his widow attached. In respect to the right of dower as now regulated by the Code, seizure of the husband at any time during the coverture (unless of lands obtained in right of the wife) is not sufficient; there must be seizure at the time of his death. The prior law was somewhat different. 28 Ga., 478. In the present case, the estoppel by which the husband was bound, operates with equal force upon his widow, (compare 10 Ga., 321; 55 Ib., 613,) and her claim for dower is inadmissible. The purchase money was not paid, even in part, while the husband was in life. But had it been partly paid, she would not have been dowable. 15 Ga., 100.

2. Homestead having been set apart in this land, after the death of Ealey, for the benefit of his widow and minor children, the same, though the land was held under bond for titles only, with the purchase money unpaid, was protected against all claims upon the estate which the record discloses, except the vendor’s claim for purchase money. Though the holder of a bond for titles is without legal title, he is not without some sort of interest in the land, and upon that interest the homestead right may be made to attach. 57 Ga., 601; 59 Ib., 507. Of course, it cannot attach só as not to be subordinate to the legal title in the vendor, and to whatever else would, in an ordinary case, prevail over the homestead right. Nor, in the case of the holder’s death, as in .the present instance, can the personal effects, (no further at least than the holder may, in his life-time, have directed their application), be withdrawn from general creditors, and applied to the debt for purchase money of the land, with a view to relieve the homestead. But when,the land, as a whole,- has paid its own purchase money, or so much thereof as the deceased left unprovided for by some special arrangement, there appears to be no good reason why the homestead, or whatever part of it may be spared, should not be recognized and protected. In the present instance, it seems altogether practicable for a court of equity, upon such a bill as it has before it, to direct the investment of any surplus which the land, when sold, may produce, in a suitable homestead of realty. This investment, when made, will represent the original homestead estate as disincumbered by the then extinct claim for purchase money. See 25 Ga., 223 ; 23 Ib., 393. It may be added, that the whole surplus is not to be so invested, should it be in excess of the amount to which a homestead of realty is limited by the constitution, but only a part reaching up to that limit.

3. There was evidence before the auditor which authorized his conclusion that the net proceeds of the policy of insurance taken out by Ross on Raley’s life, ought to be credited on the notes held by Ross for the purchase-money of the land.' That evidence was: first, the testimony of P. H. "West, Esq., that Ross said the policy was taken as collateral security-for the debt; secondly, the testimony of the insurance agent, Monroe, that he was informed by both Ross and Raley that the latter was indebted to the former, and that the policy was taken out to secure the debt; and, thirdly, a writing by Ross himself, made after the death of Raley, and after the policy was collected from the insurance company, in which writing he sets forth the proceeds of the policy as matter of account, between Raley’s estate and himself. Though Ross paid the premiums, he probably did soon the credit of Raley, and hence the written statement. In that statement, he takes credit, as against Raley’s' estate, for all his advances and expenses, reducing the net proceeds of the policy accordingly. We think with the auditor, that these net proceeds are applicable to the debt, and that only the balance of the debt is a charge upon the land.

é. As to the various minor points, in all of which both the auditor and the chancellor concurred, the presumption is strongly in favor of the report, and we find no positive error. Some of these minor questions will now be noticed briefly.

The plaintiffs in error, besides Mrs. Raley, are Deas, a creditor by note; Hays, a creditor by general judgment, and Harris, Whitaker, Charles Jones and Sol Jones, laborers claiming, each, a laborer’s lien. Porter, a creditor, and Hardeman & Sparks, also creditors, acquiesced in the judgment overruling their exceptions to the auditor’s report, and did not become parties to the bill of exceptions.

It is contended that the general judgment had priority of a claim for rent, which latter was held by the auditor and the court to outrank the former as to the crop made on the rented land. Ealey died after the act of February 21,1873, (Code, §1977), which act gives to the landlord a special lien on the crop, irrespective of the levy of a distress warrant. The crop was sufficient in value to pay .the rent, and having been appropriated by the administrator to the use of the estate in the payment of expenses, the lien was transferred by operation of law to the general fund in his hands, by way of subrogation.

The laborers were paid certain amounts by Porter after Ealey’s death. They complained that these amounts were not allowed them as if still unpaid, but were deducted from their claims against the estate. They say Porter did not pay by order of the administrator, and, therefore, that the administrator was entitled to no credit. But the administrator, by taking credit, ratified the payments which Porter made, and this he had a right to do. Porter has a claim upon the estate for his advances, and the auditor allowed it as an account, but with no priority. This may have been injurious to Porter, but he has submitted to it, and if he is satisfied, the laborers who received his money or goods, ought to be. Sol Jones complains further, that his claim was not allowed, even as to the balance. If he had a lien fi.fa., it does not appear in the record, although there is a statement in the brief of evidence that such a fi. fa. was presented. There was probably some entry on the fi.fa., or some defect in it, which caused the auditor and chancellor to disallow it. Why that fi. fa. was left out of the record, and the others not, is unexplained. If there was a balance really due Sol Jones, and by mistake or oversight it was left out of the auditor’s report, the court might even yet correct the report, and ought to do so.

Without further elaboration in detail, the judgment of this- court is as follows : “That the judgment of the court below be reversed as to that part thereof which overrules the auditor’s report in respect to the application of the net proceeds of the policy of insurance; and also as to that part thereof which overrules the auditor’s report in respect to laying out the surplus proceeds of the land in the purchase of other land as a homestead. Let the decree be modified accordingly. And if there be a mistake or oversight in rejecting the claim of Sol Jones as a laborer’s lien, ranking with the other liens of the same class, let that be corrected also.”

Judgment reversed.