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Murphy vs. Vaughan.

The morality of the rule now declared is, I think, as clear as the rule itself. It is not right that a man, while living, or his family after his death, should enjoy property free from encumbrance, when his purchase of it was made expressly subject to that encumbrance. Courts are organs of justice not of charity; and widows and orphans, like all other suitors, must endure the rigor of equal and impartial judgment.

JACKSON, Judge, dissenting.

The reasons for my dissent from the judgment pronounced in this case are clearly, if not fully, set out in the syllabus handed to the reporter. This court has decided, and the statute declares, that the year's support is part of the expenses of administration, and shall be paid like them in preference to all debts. In Cole and children vs. Elfe, 23 Georgia Reports, 235, it is ruled that such year's support is a superior lien to any debt the deceased can make. In Elfe vs. The Macon Building and Loun Association, 23 Georgia Reports, 197, it is ruled that the year's support has preference over a mortgage. Rust, Johnson & Company vs. Billingslea, 44 Georgia Reports, 306, decides that the year's support has preference over everything in the way of debt, and distinguishes between it and dower and homestead in this particular. In Elfe vs. The Macon Building and Loan Association, BENNING, judge, dissented, because he thought the mortgagee took little, but he stands alone. In Davis et al., vs. Anderson et al., 1 Kelly, 176, the court, the present chief justice delivering the opinion, decided that the mortgagee in Georgia, takes no title; and it has been so ruled, either by a unanimous or majority court ever since, so far as I can ascertain. It follows that if A sells to B any property ou a credit, and mortgages it for purchase money and die, the year's support is preferred to the mortgage in the distribution. I can imagine no harder case against the creditor than that, nor can I see any reason in the distinction between that case, and where B buys property already mortgaged by his vendor. The one is hard as the other.

Murphy vs. Vaughan.

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Nor can I see what difference it can make that the vendor is a partnership, and the vendee one of the partners. The case of Boone vs. Sirrine, 38 Georgia Reports, 121, is clearly unlike this at bar. There the title never passed to the vendee, and the ruling is put on that ground. There was no sale to the deceased in that case. But the case of Benjamin vs. Gill, 45 Georgia Reports, 110, ought to conclude this case. There it is ruled expressly that trustees are estopped from setting up title adverse to the trust, and their actions and returns there on. This administrator, who is the creditor, returned this property to the appraisers, swore that it was the estate's, sold it as the estate's, and is estopped from setting up title adverse to the estate. Out of his own mouth, his own oath, he is condemned, and this furniture is the estate's, and subject to distribution. The intestate held it as his own for fifteen months, paid this mortgage debt, in part, as his debt, died in possession of the property, and I think, in justice and equity, the widow and little ones ought to have one year's support out of it in preference to all debts, liens or encumbrances. I think the law wise. I am unwilling to fritter it down to a shadowy emptiness, by drawing invisible distinctions, but I stand upon the decisions of this court from its foundation to this time, and I think, upon the rock of justice, charity and benevolence, as well as the law. Besides all this, it has been repeatedly and distinctly ruled by this court that the sale of an administrator to pay debts diverts all liens; and the fund becomes subject to distribution under the rules of priority declared by the statute of distributions. In the cases cited below, it will be found that the reason given for divesting liens, is, that after death, a different rule prevails in regard to priority of dignity and right; and it is distinctly held that such sale divests the lien of judgments and of taxes due the state or the United States, at least, that expenses of administration, in which the year's support is included, come under the next head to the funeral expenses, then come taxes and debts due the state; and then trust debts; four classes are put before judgments or the vendor's lien: and I cannot see the greater

Nichols vs. Chandler.

sanctity of a mortgage than all of these liens: Sims vs. Ferrell, 45 Georgia Reports, 585, 598; Carhart vs. Vann, 46 Ibid., 389; Stallings vs. Ivey, 49 Ibid., 274.

Wilson D. NICHOLS, plaintiff in error, vs. FRANCIS M.

CHANDLER, defendant in error.

55 389 66 130 67 768

Where an instrument in the form of a deed, attested by three witnesses, one

of whom is a justice of the peace, conveys a tract of land and certain
personal property, to two daughters of the donor, and contains the provis-
ion in it, “after burial expenses and all my just debts are paid, only re-
serving to myself the use and control of said property during my natural
life," and also the provision “to have and to hold the said tract or parcel of
land and household and kitchen furniture, and houses, hogs, cows, and all
other property that I may be possessed of at my death ;” and where the
instrument was never recorded, nor delivered to the beneficiaries, but was
placed in the keeping of one of the witnesses, with this direction : "to
keep it until her death or until she called for it; that it was for the girls,

Margaret and Amanda, and that he was to hold it for them:”
Held, that the instrument, construed in the light of its non-delivery and the

direction given to the person entrusted with it, is a will and not a deed.

Will or deed. Before Judge Hall. Rockdale Superior Court. March Term, 1875.

Reported in the above head-note.

A. C. MCCALLA; JOHN J. Floyd, for plaintiff in error.

CLARK & PACE, for defendant.

JACKSON, Judge.

Chandler sued Nichols for a tract of land. His title turned on the construction of an instrument, whether it was a deed or a will; if a deed, he might recover; if a will, he could not. The instrument by itself may be doubtful of interpretation, but construed in the light of the proof as to its delivery, we think all doubt is removed. The character of the

Loyless & Griffin vs. Collins. instrument and the circumstances surrounding its execution are sufficiently set out in the head-note for an intelligent upderstanding of our judgment and the reasons on which it is based. We hold it to be a will, and reverse the judgment of the court below.

Judgment reversed.

LOYLESS & GRIFFIN, agents, plaintiffs in error, vs. WILLIAM

A. COLLINS, defendant in error. 1. The specific property for which purchase money is due is liable to a judg.

ment therefor, notwithstanding the same has been set apart under the home

stead law. Other property exempted is not subject thereto. 2. The evidence shows that the property, from which the fund in court for

distribution was raised, was not embraced in the exemption of personalty of the defendant in execution; and the court therefore erred in ordering the money paid over to him.

Homestead. Purchase money. Before Judge STROZER. Calhoun Superior Court. September Adjourned Term, 1874.

Reported in the decision.

L. D. MONROE, by Vason & DAVIS, for plaintiffs in

error.

No

appearance for defendant. .

WARNER, Chief Justice.

This was a contest between a judgment creditor of Collins and Collins himself, as to the appropriation of the sum of $120.00, which had been brought into court under a summons of garnislıment, at the instance of Collins, the latter claiming the money as a homestead exemption. The court, by its judgment, awarded the money to Collins, whereupon the judgment creditor excepted.

1. The plaintiff's judgment was founded on an account for a cotton gin which Collins had purchased but had not paid

Loyless & Griffin vs. Collins.

for, and had had set apart as a homestead exemption. Inasmuch as the cotton gin had not been paid for, it was subject to the plaintiff's judgment for the purchase money due therefor, but not the other property contained in the homestead exemption.

2. There is contained in Collins' homestead exemption a note on Brown for $100 00, and two bales of cotton, worth $60 00. It is quite clear, we think, that the cotton for which Brown gave his note for rent was not included in the homestead exemption. The distress warrant of Collins against Brown was sued out on the 27th of October, 1873, and on the same day levied on the cotton, from the proceeds of which the money was raised, the subject matter of distribution, as appears from the record. Collins' homestead exemption was not obtained until the 27th of December thereafter. Collins, the homestead debtor, cannot have Brown's note as an exemption, and other cotton to the amount thereof, which was not embraced in his exemption. The cotton from which the money was raised had been levied on as the property of Brown two months before the homestead exemption of Collins was obtained, and therefore it was not the cotton contained in his homestead exemption. If the cotton levied on was Brown's cotton, two months before Collins obtained his homestead, it was not his cotton which was contained in his homestead exemption. In our judgment, the court erred in awarding the money to Collins as his homestead exemption on the statement of facts contained in the record.

Let the judgment of the court below be reversed.
JACKSON, Judge, concurring :

I desire to say that I concur in the judgment of the court in this case, but not in the entire opinion. I hold that the homestead is one-granted to the party by one act--that of the ordinary. In like manner the exemption of personalty is one act. The two together constitute one estate, set apart to the head of the family in trust for the family. It is made exempt by the constitution from all debts except taxes, pur

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