Williamson v. McLeod

Jackson, Justice.

Mrs. Williamson brought ejectment for a certain piece of land which had been set apart as her dower, against McLeod, who had purchased the entire tract'at sheriff’s sale, it being sold as the property of her husband, and her title to the portion sued for turned on the validity of her dower interest previously set apart and assigned her by the superior court.

The presiding judge held that the assignment was void as to the purchaser, McLeod; the jury rendered a verdict for the defendant, the plaintiff excepted, and the question is whether the widow’s assignment of dower was void 2

1. Section 4041 of the Code enacts that five commissioners shall be appointed, a majority of whom may act, and in the case at bar but four were appointed, and the superior court held the whole assignment null and void on this account.

The section does not declare that dower assigned in any other way shall be void, or that unless five are appointed commissioners, the entire action of the court shall be a nullity. On the contrary, the section enacts that a majority of the five may act, and that their action will be as good as if all five acted. Sub-section six of the fourth section of the Code declares that “ A substantial compliance with any requisition of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment.” There is no provision expressed in this enactment declaring the act of this public officer in the assignment of this dower by the appointment of four, and not five commissioners, void, and therefore it cannot be lawfully, we think, so declared by the courts. •

Besides, it was admitted on the hearing before us, that McLeod was a creditor of the deceased husband of this widow. If so, he should have objected to the appointment of four commissioners at the time when the return was made the judgment of the court. After it was made that judgment, he was precluded from objecting. He had notice through the administrator. Formerly, notice had to be given to all persons interested in decedent’s estate; but a subsequent statute made notice to the administrator suffice as to all heirs and creditors. Had the return been objected to before it was made the judgment of the court, doubtless it would have been held illegal, because the number called for by the statute hq,d not been named as commissioners; but to pronounce a judgment absolutely void after its rendition, is quite a different matter. Indeed, section 4048, which declares that “ when the return of the commissioners is made the final judgment of the court, it shall be conclusive between all parties interested,” would seem sufficient to settle the point, and to the same effect is the judgment in 41 Ga., 42.

2. The court seems to have misapprehended the facts in the second charge, of which complaint is made. The assignment of dower was recorded in the place where other title papers appear, and the plat made by the surveyor having been by some inadvertence omitted from the record, was added thereto ly order of court regularly taken, as the record of the case brought here under the clerk’s certificate attests.

So that the title of this widow to her dower, always a favorite right in the eyes of the law, and held superior to the most sacred liens of creditors, was not only Us pendens, but finally made the judgment of the court, and recorded where all titles to real estate are looked for, and to all intents and purposes was thus constructive notice to the world, and was actual notice to this defendant, if a creditor of the deceased and interested thereby in the estate, and represented by the administrator.

The court below having charged contrary to the opinion we entertain of the law on these two controlling questions, which necessitated a verdict against the plaintiff, we must award to her a new trial.

Judgment reversed.