Philpot v. Ramsey , 47 Ga. App. 635 ( 1933 )

Stephens, J.

1. The right to a year’s support out of the estate of a decedent, which is given to his widow and minor children as provided in the Civil Code (1910), § 4041, vests on his death. Brown v. Joiner, 77 Ga. 232 (3 S. E. 157) ; Swain v. Stewart, 98 Ga. 366 (25 S. E. 831); Ehrlich v. Silverstein, 121 Ga. 54, 60 (48 S. E. 703); Anders v. First National Bank, 165 Ga. 682 (142 S. E. 98). Since, as provided in section 4000, the right to a year’s support is superior to “other liens created during the lifetime of the deceased,” where the same do not constitute a landlord’s special lien on the crops for rent or supplies, or for the purchase-money (§§ 4048, 4049, 4050), the title of the widow and minor children in the property thus set aside is superior to any lien which a. factor may have upon the property for a past indebtedness of the deceased, or for advances made to him after he had delivered and deposited the property with the factor with specific instructions and authority to the factor to sell the property and apply the proceeds to the payment of the debts of the deceased, where none of this indebtedness was for the purchase-money of the property or was due to the factor as a landlord for rent or supplies. This ruling is not in conflict with that in Clark v. Dobbins, 52 Ga. 656, where it was held that a factor who had advanced money to the tenant on cotton produced on rented land thereby acquired a qualified property in the cotton, and a “lien” upon it, entitling his claim for advances to priority over the unforeclosed lien of the landlord for rent against the cotton, where the factor had received the cotton and had made the advances thereon bona fide and without notice of the landlord’s lien on the cotton for rent. While it was there held that “the right of the factor is that of a purchaser to the extent of the advances made, and he has a special property in the thing or article on which he has advanced his money,” it was not held that the factor acquired title to the property. The factor there occupied, as to the landlord, the position of a bona fide acquisitor of a mortgage lien on the property, for value and without notice, and, so far as was there held, possessed only a lien upon the property for the advancements made. See Civil Code (1910), §§ 3362, 3531; 12 Am. & Eng. Ene. L. 680; 25 C. J. 394. Such lien, where no title passed, has no priority over the lien given by statute on the property of the deceased at the time of his death, to the widow and minor children for a year’s support. Ullman v. Brunswick Title Guarantee &c Co., 96 Ga. 625 (3) (24 S.E. 409).

2. Where a factor with whom property has been deposited makes advances thereon to the owner, the factor has the right and power to sell the property for the purpose of paying the indebtedness represented by the advancements, and has a lien upon the funds derived from the sale, for the purpose of reimbursing him for the advances made; and where in such a case the factor, in the lifetime of the owner, sold the property and applied the proceeds to the indebtedness, neither the property nor the proceeds of the sale thereof became, upon the death of the owner, a part of his estate, and therefore the widow and minor children were not entitled to a year’s support in the property or the proceeds thereof. Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488 (77 S. E. 589). Where, however, the factor, although he had made the advancements during the lifetime of the owner, did not sell the property until after the owner’s death, the property incumbered with the factor’s lien for the advancements became a part of the owner’s estate, and was therefore subject to the superior lien of the widow and minor 'children of the owner for a year’s support.

3. Upon the principle that where a person having charge of property of another mixes it with his own, he must separate and distinguish his own property or lose it (Civil Code of 1910, §§ 3592, 4587), a factor who, after having made advancements to the owner upon property deposited with him, sells a portion of the property during the owner’s lifetime and applies the proceeds thereof upon the indebtedness, and sells the remainder of the property after the death of the owner, must, where he is entitled to the proceeds of the property sold before the death of the owner, but, by reason of a claim of the widow and minor children of the owner to a year’s support, is not entitled to the proceeds of the property sold after the death of the owner, distinguish and separate the proceeds to which he is entitled from the proceeds of the property sold after the death of the owner, before he can assert his claim to the part to which he is entitled. Where such property consisted of nine bales of cotton, and one bale was sold before the death of the owner and the proceeds applied to the indebtedness, and the remaining eight bales were sold after the death of the owner, the factor could not claim the proceeds of the sale of the first bale to which he was legally entitled by merely showing the amount of the proceeds derived from the sale of all the cotton.

4. A year’s support does not supersede a bill of sale passing title to the property to secure a debt, executed by the deceased and duly recorded in his lifetime.

5. The widow’s right to a year’s support in personal property is not superior to the right of a creditor of the deceased in the property where it has been conveyed to him by the deceased under a bill of sale to secure a debt, although the bill of sale was never recorded. Summerford v. Gilbert, 37 Ga. 59; Odom v. Hoppendeitzel, 153 Ga. 20 (111 S. E. 419) ; Bank of Wrightsville v. Powell, 163 Ga. 291 (135 S. E. 922) ; Garrard v. Milledgeville Banking Co., 168 Ga. 339 (147 S. E. 766); Griffith v. Haygood, 174 Ga. 22 (161 S. E. 831). Stephens, J., dissents.

6. Although property set aside as a year’s support may have been set aside to the widow and minor children, the widow nevertheless has the right to control tlie property, and can, in her own name, maintain a suit in trover for its conversion. Hendrix v. Causey, 148 Ga. 164 (96 S. E. 180) ; Ragan v. Shiver, 130 Ga. 474 (61 S. E. 1) ; Allen v. Lindsey, 113 Ga. 521 (38 S. E. 975) ; Derrick v. Sams, 98 Ga. 397 (25 S. E. 509, 58 Am. St. R. 309) ; Lowe v. Webb, 85 Ga. 731 (11 S. E. 845) ; Cleghorn v. Johnson, 69 Ga. 369.

Decided September 29, 1933. Paul T. Chance, C. Vernon Elliott, Nathan Jolles, for plaintiff.

7. Upon the trial of a suit in trover for the alleged conversion of nine bales of cotton, a quantity of corn, hay, fodder, two mules, and a wagon and harness, where it appeared without dispute from the evidence that the property had been set aside as a year’s support to the plaintiff as widow and her minor children; that the cotton had been deposited by the deceased with the defendants, who were cotton factors, with instructions to them to sell it and apply the proceeds to the deceased’s indebtedness to them; that the defendants, after the cotton was deposited with them, made advances in certain sums to the deceased, that prior to his death the defendants sold one of the bales of cotton, that after his death and before the year’s support was set aside the defendants sold the remaining eight bales of cotton; that when the cotton was sold and the money collected it was applied by the defendants upon the deceased’s indebtedness to them; that the nine bales of cotton brought at the sale $357, but the amount for which the first bale of cotton was sold does not appear; that the cotton and some of the other property had, by a bill of sale to secure an indebtedness to the defendants of $144.60, been conveyed to them by the deceased, but this bill of sale was never admitted to record, and that for a prior indebtedness of the deceased to the defendants in the sum of $405 tlie mules and the wagon and some crops had, by a duly recorded bill of sale to secure the indebtedness, been conveyed to the defendants; that there was another bill of sale to crops to secure an indebtedness of $212, which was never recorded; that the defendants, at a private sale pursuant to power contained in the bill of sale, had sold the wagon and the mules for $155, and the corn and fodder for $15; that the defendants were not the landlords of the deceased and none of the indebtedness was due to them for rent or for supplies furnished by them as landlords or for purchase-money, by an application of the above rulings a verdict for the plaintiff in some amount was authorized, and the verdict found generally for the defendants was unauthorized and without evidence to support it, and the plaintiff is entitled to a new trial.

8. It is unnecessary to pass upon the exceptions to excerpts from the charge of the court and to the failure of the court to give certain requested instructions. Any errors, if there be any, in the charge or in the failure to charge, are not, upon the application of the rulings here made, likely to occur upon another trial.

Judgment reversed.

Broyles, C. J., and Sutton, J., concur. Jenldns, P. J., absent on account of illness. Fleming & Fleming, for defendants.