Woodward v. Bivins , 71 Ga. 589 ( 1883 )

Hall. Justice.

To this action of ejectment the defendant filed a plea to the jurisdiction of the court, “ for that the suit was instituted, and is pending for the recovery of property which had been set apart under the homestead and exemption laws of this state, and was thereafter sold, to defendant, and that a court of equity alone has jurisdiction of said case, under the laws of this state, whereas the same was returned to, and now pending on the common law side of the court,” wherefore, etc.

To this plea the plaintiff demurred, and the demurrer oeing overruled, and exception having been taken to the decision of the court overruling the same, issue was taken upon the plea, which was tried under an agreed statement of facts, to the effect that John L. Woodward, one of the lessors of the plaintiff, and father of the plaintiff’s lessors in the second count off the declaration mentioned, as the head of the family, had the premises in question set apart and exempted to him as a homestead, under the constitution and laws of the state; that afterwards he was adjudged a bankrupt under the laws of the United .States ; that the premises had been sold by the assignee in bankruptcy, appointed by the court under said adjudication, and purchased at said sale by, and conveyed to, James H. Bivins, prior to the year 1876. •

On this agreed statement of facts, the presiding judge held that the court had no jurisdiction of the case, but that a court of equity, under these facts, alone had jurisdiction; to which decision the plaintiff excepted. Upon'this ruling, the jury returned a verdict, finding the' issue on said plea in favor of the defendant. The demurrer to the plea was properly overruled. It was in the very terms of the act of 1876, p. 51, and set forth all the facts, which, under that act, deprived courts of common law of their jurisdiction, and conferred it upon courts of equity. Neither was there error m the ruling of the court nor.the finding of the jury in favor of the plea, upon the agreed facts. 59 Ga., 883; 64 Ib., 747; 66 Ib., 600. It would be improper to presume that the proceedings in bankruptcy, by which the premises m question were brought to sale, were irregular and unauthorized; nor can we infer that John L. Woodward was an involuntary and not a voluntary bankrupt. If the former fact bad existed, and was deemed material, it should have been made clearly to appear, and have been inserted in the agreed statement of facts. It is scarcely doubtful if the fact of the proceedings in bankruptcy would lxave aided tbe case, even if they bad been forced upon him. If any of. tbe lessors of the plaintiffs have rights, these rights may be as effectually set up in a court of equity as in a court of law. The rights of all the parties could be more fully ascertained and definitely settled in that court than under this action of ejectment.

Judgment affirmed.