Craddock v. Kelly , 129 Ga. 818 ( 1908 )

Atkinson, J.

1, 2, 4. The rulings announced in the first, second, and fourth headnotes need not be elaborated.

3. A motion was made at the trial to dismiss the plaintiff’s suit, upon the ground that it appeared on the face of the petition that the plaintiff was guilty of laches in instituting suit. The suit as amended was complaint for land, depending upon the assertion of a legal right, without’reference to any right existing by force of a mere equity. The petition as amended alleged in substance, among other things: that in 1886 the land in dispute was set apart as a homestead for the use of the family of the intestate; that the homestead did not ■ expire until July, 1903; that in the meantime the plaintiff’s intestate had died; that letters of administration had been granted to the plaintiff; that in 1893 an order was obtained from the court of ordinary, authorizing sale of the land in dispute, for the purpose of paying debts of the deceased and making distribution among the..heirs. The plaintiff’s suit for the recovery of the land was filed in February, 1904. A period of more than ten years thus elapsed between the grant of the order to sell and the institution of the suit. It was further in substance alleged that in the meantime the defendants, Prince Albert Craddock, a minor, and Eliza Williams (who were the only defendants remaining in the suit after certain others had been dismissed by amendment) had been in possession, not claiming adversely to the plaintiff, but as beneficiaries under the homestead. Under these conditions it was not erroneous to overrule the motion to dismiss. The order to sell did not recognize the existence of different estates in the particular propertj', such as an estate in the nature of a trust for the benefit of the members of the family in whose behalf the homestead had been created, or a reversionary interest in the head of the family after the termination of the homestead. It was a mere authority to sell the land as a whole. If the land had been sold under such an order granted by the ordinary, the purchaser could not have disturbed the possession of the family until after the termination of the homestead estate. Dealing with a homestead obtained under the constitution of 1877, Mr. Justice Simmons, speaking for the court, in Planters Loan & Savings Bank v. Dickinson, 83 Ga. 711, said: “The title still remained in the husband, but a new use of the property was created by the judgment of the ordinary setting apart the same as a homestead. That use was for the benefit of the wife and minor children, as long as the wife should live or so long as the children should remain minors. When the wife dies and the children become of age, the use ceases; and if the husband is still living at that time, he becomes reinvested with all the rights which he had before the homestead was set apart. He can then sell or mortgage at his pleasure. But so long as the homestead estate remains, he can not sell without the consent of his wife, nor without an order from the judge of the superior court; nor, as we now think, can he mortgage it with the consent of his wife and with an order of the judge of the superior court.” Under the constitution of 1877, art. 9, sec. 3, par. 1 (Civil Code, '§5914), it is expressly provided that after the homestead is set apart, the husband can not “alienate or encumber the property so exempted, but it may be sold by the debtor and his wife, if any, jointly, with the sanction of the judge of the superior court of the county where the debtor resides or the land is situated, the proceeds to be reinvested upon the same uses.” The interest of the members of the family in property after it has been set aside as a homestead is in the nature of a trust, whereby they are given the right of use and possession of the property at all times during the existence of the homestead. They can not be deprived of that use except in a manner authorized by law. The court of ordinary has not jurisdiction to pass any order terminating that use, impairing the homestead, or which would authorize the eviction of the members of the family while the homestead is in- existence. The court of ordinary is a court of general jurisdiction with respect to particular subject-matters only. Civil Code, §4232. The power to pass upon a question involving the right of the members -of the family, for whose benefit the homestead was obtained, to continue in possession of the exempted property, is not among the powers conferred upon the court of ordinary. Being without jurisdiction to interfere with the possession of the members of the family, the order of sale would not raise a presumption of a present right of entry upon the part of the administrator as against the beneficiaries of the homestead. Stuckey v. Watkins, 112 Ga. 268, contains dicta seemingly in conflict with the ruling here announced with respect to presumptions. The decision in that case was not rendered by the entire bench of six Justices. The court seems to have overlooked the fact that the general jurisdiction of the court of ordinary extended only to particular subject-matters, and, evidently by inadvertence, dealt with the subject as if the jurisdiction extended to all matters. To that extent the ruling is not sound, and we will not follow .the precedent. As the order of the ordinary authorizing the sale was ineffective as authority for interfering with the possession of the members of the family while the homestead was of force, the plaintiff did not thereby acquire a present right of entry. After the termination of the homestead, under the principle announced in Planters Bank v. Dickinson, supra, there would have been a complete reversion of the right of possession to the head of the family, had he lived; but he having died, such reversion was to h'is estate. By mere force of the exhaustion of the right to possession by members of the family, under the order setting apart the homestead, the property became entirely unencumbered, and no difficulty thereafter remained to prevent the administrator from proceeding with the order to sell the property as the estate of his intestate. Within less than one year after the termination of the, homestead estate the suit was filed. The administrator thus proceeded with dispatch rather than with delay in instituting a suit after his right of entry accrued. Under these conditions, it did not appear from the face of the petition that there was any delay attributable to the plaintiff, tending to support a defense under the doctrine of laches.

5. It was the right and duty of the administrator to administer the entire 'estate of his intestate in such way as to apply so much thereof to the payment of debts as might be neeessarjr to accomplish their satisfaction, and to make proper distribution of any resichie of the property among the heirs at law. It appears from the pleadings and evidence that the two defendants against whom the verdict was directed had been in possession from the termination of the homestead estate, and that they were only two of a number of other heirs at law of the deceased. It also appeared that there were valid and subsisting debts against the estate, which were proper charges upon the land. It also appeared that an order had been granted by the ordinary, authorizing the administrator to sell the property for the purpose of paying debts, and making distribution among the heirs. It did not appear that any changes had taken place since the grant of the order, tending to render the sale unnecessary for the. purposes for which it was granted. Under these conditions, the administrator was entitled to recover possession of the land from the two defendants remaining in the suit. It also appeared that the plaintiff made demand for possession, and the defendants refused to surrender the same. There was no direct evidence of a demand and a refusal; but the. suit filed by the defendants against the plaintiff, seeking to enjoin him from evicting them as tenants holding over, amounted to an admission of such demand and refusal. The plaintiff having a right to possession for the reason already indicated, a refusal by the defendants to surrender possession upon demand rendered their future possession unlawful, and made' them liable to the plaintiff for mesne profits. Their title as heirs at law was always subject to the right of the administrator to have possession where necessary to pay debts and to make proper distribution among all the heirs. See Civil Code, §3081. The remaining heirs (who were not parties to the suit) and creditors were entitled to participate in a distribution of the mesne profits arising from the unlawful use of the land by the defendants, just as they would be entitled to participate in a distribution of any other asset of the estate. After the possession of the defendants became wrongful, they did not stand in any better position than any stranger to the estate. If there be any defense growing out of his position as heir, it is matter for him to set up.

6. The court directed a verdict for the plaintiff for an undivided three-fourths interest in the land, and $165 mesne profits, and costs. The evidence was without conflict upon any material issue. It appeared that by order of the court of ordinary an undivided one-fourth interest in the property was set apart to Prince Albert Craddock, a minor, as a year’s support. The court gave due recognition to this interest, and in directing the verdict only dealt with the remaining three-fourths interest. It appeared from the evidence that on September 18, 1903, the defendants, Prince Albert Craddock and Eliza "Williams, filed a suit for injunction against the plaintiff in the present case, complaining that on September 15, 1903, proceedings had been commenced by the plaintiff as administrator to evict them as tenants holding over. The allegations of that suit were such as to show a- demand for possession at the time of the filing of the proceedings to evict, to wit, September 15, 1903. It was admitted in the defendants’ plea that the property in dispute was reasonably worth the sum of $8 per month for rent. Eor the time intervening between September 18. 1903, and the date of the verdict, May 25, 1906, the rent at $8 per month would amount to $256, three-fourths of which would be $192. This latter amount would, under the admission of the defendant, be the reasonable- value of the three-fourths undivided interest. The amount of mesne profits directed to be found by the court was a less sum; but the defendants can not complain because it is less. The uncontradicted evidence offered, when taken in connection with the admissions made by the defendants, were of such character as to leave nothing for submission to the jury; and it was not erroneous to direct a verdict as indicated.

Judgment affirmed.

All the Justices concur, except Holden, J., who did not preside.