Herrington v. Godbee

Hill, J.

(After stating the foregoing facts.) The plaintiffs in their motion for new trial assign error upon the direction of a verdict for the defendants by the court, on the ground that the land sued for was embraced in a tract of land set apart as a homestead upon application of Wm. M. Herrington as the head of a family consisting of a wife and minor children; that the homestead was duly approved bj7 the ordinary of Burke County on March 19, 1869, and was recorded March 26, 1869; that the title to the land is now vested in the plaintiffs in this suit on the death of the beneficiaries of the homestead; that the title to the property was never transferred to any one in any manner provided by the constitution of 1868; that the attempt of Wm. Herrington and his wife to withdraw the application for homestead after the homestead had been finally set apart was wholly illegal and the order to that effect dated July 22, 1873, was nugatory and void; and that the wife, who was the last beneficiary of the homestead, did not die until May 1, 1922, at which date the title to the property vested in the plaintiffs as heirs’ at law of Wm. Herrington. It is insisted that all purchasers of the land in controversy had constructive notice that the property had been set aside as a homestead, and that it was admitted by the defendant Mose Godbee that he had actual notice of the existence of a homestead twenty-one years ago. It is also insisted that the sale of the 300 acres of land, which was a part of the homestead set aside in 1869, under the order of the assignee in bankruptcy to James H. Daniel on February 12, 1875, was void and conveyed no title against the plaintiffs, because that land had already been set apart under the State law as a homestead and was not subject to be sold under any legal process whatsoever during the existence of the homestead, except as provided by law, it not appearing from legal evidence that the sale was made under any one of these specified exceptions. It is also insisted that the plaintiffs, who are the heirs at law of Wm. Herrington, were not entitled to possession of the land until after the death of Mary Herrington, the wife and the last beneficiary of the homestead, who died May 1, 1922, and consequently title by prescription could not begin to ripen against plaintiffs until after the death of the wife on May 1, 1922, and the present suit was filed September 1, 1922, in ample time to protect their rights under the law. We have set out the assignments of error and contentions of the plaintiffs in full; and the question to be decided is whether, under the foregoing assignments and in view of the record, the court erred in directing a verdict for the defendants.

The constitution of 1868 (art. 7, sec. 1) provided: “Each head of a family, or guardian or trustee of a family of minor children, shall be entitled tó a homestead of realty to the value of two thousand dollars in specie, and personal property to the value of one thousand dollars in specie, both to be valued at the time they are set apart. And no court, or ministerial officer in this State, shall ever have jurisdiction or authority to enforce any judgment, decree, or execution against said property so set apart, including such improvements as may be made thereon from time to time, except for taxes, money borrowed and expended in the improvement of the homestead, or for the purchase-money of the same, and for labor done thereon, or material furnished therefor, or removal of encumbrances thereon. And it shall be the duty of the General Assembly, as early as practicable, to provide, by law, for the setting apart and valuation of said property, and to enact laws for the full and complete protection and security of the same to the sole use and benefit of said families as aforesaid.” On October 3; 1868, the legislature passed an act (Acts 1868, p. 27) providing for the setting apart of a homestead of realty and personalty, etc., which in part is as follows: “That each head of a family, or guardian or trustee of a family of minor children, shall be entitled to a homestead of realty of the value of two thousand dollars in specie, and personal property to the value of one thousand dollars in specie, both to be. valued at the time they are set apart; and no court or ministerial officer of this State shall ever have jurisdiction or authority to enforce any judgment, decree, or execution against said property so set apart, including such improvements as may be made thereon from time to time, except for taxes, money borrowed and expended in the improvement of the homestead, or for the purchase-money of the same, and for labor done thereon, or for material furnished therefor, or removal of encumbrances thereon, provided the same shall have been set apart and valued as hereinafter provided,” etc.

It has been held by this court that debts and liens created prior to the constitution of 1868 are good as against a homestead which was applied for and set apart under the constitution of 1868. In the case of Jones v. Brandon, 48 Ga. 593, this court held, that, “Under the decision of the Supreme Court of the United States, in the case of Gunn v. Barry, the homestead clause of the Constitution of 1868 is in violation of the constitution of the United States in so far as it authorizes the homestead and exemption therein provided for to be set up against contracts made before the adoption of said constitution of 1868.” In delivering the opinion of the court Judge McCay said: “It is true that the decision [Gunn v. Barry, 82 U. S. 610, 21 L. ed. 212] alluded to does say that the effect of the constitution of 1868 is to divest a vested right in Gunn, but that must be taken as only collateral to the main point. The right of the Supreme Court to pass upon the question at all depends entirely upon the supposed antagonism between the homestead law and that clause of the constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts.” In Gunn v. Barry, supra, the Supreme Court of the United States had held, prior to the decision in the Jones case, supra: “That, as respected a creditor who had obtained by his judgment a lien on the land which the old exemption secured to him while the new one destroyed it, the law creating the new exemption impaired the obligation of a contract, and was unconstitutional and void.” In Bush v. Lester, 55 Ga. 579 this court held, that, “When the lien is that of a judgment which was rendered prior to 1868, the increased exemptions provided for by the present constitution will not hold against it.” Judge Bleckley, in rendering the opinion of the court in the Bush case, said: “By the laws of Georgia a judgment has a lien from its date upon all the property of the defendant: Code, § 3580” (§ 594-6). And see Stuckey v. Watkins, 112 Ga. 268 (2), 269 (37 S. E. 401, 81 Am. St. R. 47).

The homestead clause of the constitution of 1868 of the State of Georgia, and the act of 1868 (Acts 1868, p. 27) passed in pursuance thereof, were in violation of the constitution of the United States prohibiting the passage of laws impairing the obligation of contracts, in so far as they authorized the homestead and exemption therein provided for to be set up against contracts made before the adoption of the 'State constitution. The homestead of 1869 was therefore void as against the judgment liens based on contracts, obtained against the head of the family, Wm. M. Herring-ton, in 1867; and without deciding whether the order of the ordinary allowing Herrington to withdraw the application and the homestead set apart to him as head of a family in 1869 was valid, we hold that the assignee in bankruptcy could administer the assets of the bankrupt, Herrington, including the homestead property, for the benefit of the judgment creditors of 1867; and when the assignee sold three hundred acres of the alleged homestead property for that purpose, the purchaser obtained whatever title Herrington had in the three hundred acres of land sold. It follows, under the facts of the case, that Godbee, who bought from the purchaser at the assignee’s sale, and those holding under God-bee, would also obtain a like title. It makes no difference that Godbee had notice of the homestead of 1869 when he bought the land. The homestead was void as against judgment liens obtained against Herrington in 1867, before the homestead of 1869 was set apart. See authorities supra.

The bankruptcy court, under the bankruptcy act of 1867, was a court of general jurisdiction for the administration of the estates of bankrupts. The property in dispute was administered by that court through the assignee of the bankrupt under an order of the register in bankruptcy, under a judgment of the bankruptcy court ordering the sale of this property. It will be presumed that all necessary facts existed which gave that court jurisdiction of the subject-matter, and which were necessary to exist in order to render the judgment ordering the sale of this property valid and binding. This presumption in favor of the regularity of this judgment increases with the lapse of years,' and every reasonable presumption of fact will be conclusively indulged in order to sustain the rights asserted under this judgment. Copelan v. Kimbrough, 149 Ga. 683, 692 (102 S. E. 162). The plaintiffs in this case, suing as heirs at law of the bankrupt, are bound by that judgment, which is conclusive both on the ancestor and heirs. It follows also that there is no merit in the contention that the assignee could not sell the three hundred acres of land for the benefit of the creditors of the bankrupt.

As the foregoing is controlling of the case, it is unnecessary to decide whether the present suit was filed in time, i. e., within the statute of limitations, or prescription. The plaintiffs are not now claiming as beneficiaries of the homestead set aside to their father in 1869, but they are suing as his heirs at law after the termination of the homestead to recover this as his property. Clearly the sale of the assignee in bankruptcy covered the reversionary interest or the ancestor. What we hold is, that the plaintiffs cannot recover at all under the law as applicable to the facts of this case, and that the court did not err in directing a verdict for the defendants. Civil Code (1910), § 5926.

Judgment affirmed.

All the Justices concur.