Knox v. Yow , 91 Ga. 367 ( 1893 )

Lumpkin, Justice.

1. The material facts of this case appear in the foregoing statement prepared by the writer.

Mrs. Knox really abandoned her claim of title to the land in dispute derived through the deed made to her by her husband. As will have been seen, this deed upon its face appears to be a voluntary conveyance; and although in her petition she alleges it was founded upon a valuable consideration, her conduct from the beginning shows that she recognized the fact that it would not be good as against creditors of her husband to whom he had become indebted prior to its execution. Although the judgment in favor of Lester, as. administrator of Matthews, was junior to this deed, and although it is apparent that she resisted and desired to defeat the collection of Lester’s judgment, she did not rely on her husband’s deed to her, but rather chose to apply for a homestead in the land, alleging in her application that it was his property. In this connection it is significant that although this homestead was applied for after the ratification of the constitution of 1877, she expressly states in her application that she desires to take a homestead as against debts contracted under the constitution of 1868. All these acts, and, indeed, her conduct throughout the entire transaction, are utterly inconsisG ent with the assertion of title in herself under the deed from her husband; and in so far as she sought to recover upon this title (if she does so at all), her action cannot be maintained. She had the election to stand on the title received from her husband, or to ignore that and apply for a homestead, treating the property as his. She chose to adopt the latter alternative, and her application for a homestead having finally resulted in her favor, she is, if the sheriff’s deed to Vickery is valid, conclusively estopped from asserting title to the land in her own right as against that deed. The sheriff sold the land as the property of her husband, and the sale was made at the instance of one of his creditors who contested the homestead with Mrs. Knox, and over whom she prevailed in that contest. As a consequence, Vickery, the purchaser at the sheriff’s sale, did not, by his purchase, obtain an absolute title* but a title subject to the result of the application for a homestead, and subject finally to the homestead itself, he having bought while the application was pending, and with knowledge of the fact. Having thus gained this very substantial advantage as against this purchaser, Mrs. Knox cannot repudiate the position she assumed in order to gain it. Whether or not she could recover upon the homestead title, depends upon other facts and legal principles which will be hereafter discussed.

2. As already shown in the statement of facts, the sheriff’s sale was made under Lester’s ji. fa., and another issued from a justice’s court, the amount of which was so small that a sale under it alone would have amounted to nothing, because the levy of it on this quantity of land was, beyond question, grossly excessive. The Lester fi.fa. was attacked on the ground that it issued from a judgment rendered by the court without the intervention of a jury, after the adoption of the present constitution, upon a conditional contract in writing. This contract, however, did contain an unconditional promise for the payment of at least $200, and this was the amount of principal for which the judgment was rendered. We do not think there is any doubt about the right and authority of the court to render judgment for this amount on such a contract. The fact that the suit was brought to recover the full amount, $250, does not, in our opinion, operate to invalidate the judgment. While it is true that the payment of $50 of this amount was conditional, there was no condition at all as to the payment of the $200, and the mere fact of suing for more than the amount for which the court gave judgment is immaterial.

3. The fi. fa. in favor of Lester being valid, and the sale of the land under it being regularly made, this sale was not invalidated because of the agreement between the counsel of Lester and Mrs. Knox for a postponement of the sale. If this agreement had been known to the officer or to J. H. Vickery before the sale took place, the question would be entirely different. Neither of them, however, knew anything about it, and so far as they are concerned, it is the same as though the agreement had not been made at all. If Vickery had refused to comply with his bid, there can be no doubt he could have been forced to do so, and he would not have been heard to say that he should not be so compelled because of an agreement to postpone the sale, of which he had no knowledge and which, consequently, could not possibly have influenced his conduct. This being true, and Vickery on his part being bound by his bid, he had a corresponding right to pay the money and demand a deed from the sheriff, and it was the duty of this officer, when the money was paid to him, to make the deed at once, whether Mrs. Knox consented thereto or not. She was no party to the sale; no right of hers could he affected thereby, and she really had no interest in, nor occasion to be concerned about, the transaction between the sheriff and Vickery; but her application for a homestead having been finally allowed, and Vickery, as already stated, having bought subject thereto, because he knew of this application when he did buy, she could recover on the homestead title unless her right to do so has been lost for other reasons.

4. Notwithstanding the fact that her homestead was .set apart and established, her removal from this State .and permanent residence in South Carolina terminated the right of herself and her child to hold and enjoy the benefits of this land as property exempt under such homestead. This doctrine has heretofore been definitely .settled by decisions of this court. City Bank of Macon v. Smisson, 73 Ga. 422; Jackson v. DuBose, 87 Ga. 761. Having thus abandoned her homestead, it is manifest that Mrs. Knox cannot now successfully assert any title derived-therefrom, and whatever would defeat'her right to proceed under her homestead title, would also defeat any right which could be asserted for her child as a beneficiary of the homestead.

5. The plaintiff contends, however, that the deed to Vickery from the sheriff' was a mere nullity, because the sheriff would not have made it without her consent, .and that Vickery, having obtained that consent by fraudulently promising to resell the land to her, is not entitled to any right whatever by virtue of this deed. We have already shown that the sheriff' ought to have made the deed to Vickery without regard to her con.sent; but granting, for the sake of the argument, that this consent was essential to the validity of the sheriff’s •deed, and was procured by the fraud of Vickery, it would still be necessary for Mrs. Knox to set aside the .sheriff’s deed (it being apparently a perfect legal title) in order to assert against Vickery any title, in her own right, inconsistent therewith. If she could set that deed .aside, she would no longer be estopped from asserting the title derived from her husband as against Vickery, •whose possession without the sheriff’s deed would be merely that of a wrong-doer or trespasser. With that Heed cancelled, Mrs. Knox might recover upon the deed made to her by her husband, if her declaration sufficiently declared upon it; but the insuperable obstacle in her way is that she is barred by the lapse of time from setting aside the sheriff’s deed. If Vickery fraudulently procured her consent to the making of that deed, and thus fraudulently procured the deed itself, she-must have known of the fraud when she abandoned possession, and have been aware that upon her leaving the land Vickery would take possession of it, as he in fact did. If Vickery really made the promise she-charges him with having' broken, it would make no-difference that even at the time he made it he fraudulently intended to violate the same. All his acts and conduct constituting the alleged fraud were as well known to her when she left Georgia as they were when the suit was brought, more than seven years thereafter. Whatever may have once been her right to set aside the sheriff’s deed and recover this land, that right was barred by the lapse of time before her petition was filed. A prescription under color of title would become complete after the lapse of seven years, and by analogy, the period of limitations applicable to the fraud complained of is the same as that which would apply to an ordinary action for the recovery of the land, viz. seven years-from the discovery of the fraud. This principle was-expressly ruled in Cade v. Burton et al., 35 Ga. 280. We are unable to perceive how, in any view of the case, the plaintiff’s action can be maintained. Mrs. Knox does not ask for a specific performance of the parol contract which she alleges Vickery made to sell her the land, and beyond doubt it would, under the principle above announced, be now too late for her to have a decree for such performance, even if she had tendered the purchase money and prayed for it.

The court below, instead of granting a new trial upon only one ground of the motion, should have granted it on other grounds thereof, the nature of which .has been indicated in the head-notes. The result is, that in our opinion, the judgment on the main bill of exceptions should be affirmed, and on the cross-bill reversed.