Smith vs. Granberry, adm'r. said conduct of Smith, as to the sale of the place, was but a purchase by himself at his own sale, and a fraudulent contrivance to get title to the place in himself, and therefore his title was void, and he conveyed no title to Mrs. Smith; that Floyd was in law the tenant of Smith, as executor and by succession, at Smith's death, of Granberry as administrator, and prayed that she be restrained from further litigation with Floyd in the premises or recovering rent from him, and that the deeds and her marriage settlement should be cancelled, because they were clouds on his title as administrator. The injunction was granted temporarily with order to show cause why it should not be permanent. Mrs. Smith answered the bill, averring that she had no notice of any of the matters set out in said bill when she married Smith, in consideration of his giving her a life-estate in said "Hogan place." Her counsel objected to further injunction upon the ground that there was no equity in the bill, or, if there was, it was sworn off by the answer. The Chancellor continued the injunction, and that is assigned as error on each of said points. LANIER & ANDERSON, R. P. TRIPPE, for plaintiff in error. CABANESS & PEEPLES, for defendant in error, said there was a vested remainder in the daughters of Hogan: 4th Ga. R., 380; 7th, 519; 19th 261; 26th 515; that therefore Smith, as executor, had nothing to sell; that Mrs. Smith should have inquired as to Smith's title: Hill on Trustees, 513; 2 Chan. Cases, 246; 1 Ambler, 241; 1st Wash. R., 141; 4 H. and M., 119; 1st John. Ch. R., 574; L. C. in Eq., vol. 2., pt. 1-103; 4 Binney, 145; the doctrine of purchaser was without notice does not apply: 16th Ga. R., 190; as to the right to set aside said sale, 8th Ga. 266; 9th, 164; 12th 595; 22d, 637; 30th, 780, etc., etc. BROWN, C. J. Smith vs. Granberry, adm'r. 1. The will of James Hogan gave to his wife during her natural life, all his estate, both real and personal, and at her death the estate, with the increase, to be equally divided, and "one-half given by his executor," to the lawful heirs of the body of one of his daughters, and the use of the other half to his other daughter, during her natural life, and at her death to go to the lawful heirs of her body. The will then contains this clause: "If my wife should at any time think proper to give any portion of my estate thus bequeathed to the legatees above named, I wish her to do so only at her own discretion, through and by my executors." Held, that the assent of the qualified executor to the life-estate of Mrs. Hogan did not divest him of further control over the estate. But at her death it was the right and duty of the executor to take possession of the estate with its increase, if any, and to administer it according to the directions in the will, and, as there were no specific legacies, the Ordinary, on the application of the executor, had jurisdiction to order a sale for the purposes of distribution, in conformity to the will, the vested interest of each remainderman being an interest in a certain proportion of the estate, and not a vested interest in any particular tract of land, or piece of personal property. 2. The executor, after the death of the widow, having taken possession of the lands of the estate, and having obtained an order from the Ordinary for the sale of the same, for the purpose of distribution among the legatees, and, after legal advertisement, he having sold the same, at the proper time and place, and having, through Hollis, purchased the land at his own sale, and after making a deed to Hollis the land, on the second day thereafter, having been reconveyed to him by Hollis by regular deed: Held, that the purchase by the executor was not void, but was only voidable at the option of the legatees, provided they so elected within a reasonable time. And the executor after said sale, having claimed and occupied the land as his own, thereby acquired an adverse Smith vs. Granberry, adm'r. possession of the same, and a tenant placed upon the land by the executor after his purchase was his tenant, and such tenant could not change his landlord by attorning to the administrator de bonis non, etc., of the estate of Hogan. 3. The executor, after his purchase while he had a tenant upon the land, entered into a marriage contract with the plaintiff in error, and conveyed to her a life-estate after his death, in consideration of marriage, without notice to her of the nature of his purchase; the marriage was then solemnized, and in a few months he died, leaving, the tenant upon the premises, and his widow commenced action against the tenant for rent and a proceeding to dispossess the tenant holding over: Held, that the tenant became her tenant on the death of her husband, and the administrator de bonis non of the estate of Hogan had no right to interfere in this litigation, or to maintatn a bill in equity to enjoin her action against her tenant, the more especially as she resided in Bibb county, and the litigation between her and her tenant was pending in Monroe, where the bill was filed. If he, or the legatees of Hogan had paramount title, the litigation between plaintiff in error and her tenant did not in any way interfere with their right to commence their action of ejectment or other proper proceeding for the recovery of the land. The foregoing propositions contain the substance of my reasons for the unanimous judgment of the Court in this case, which is that the judgment of the Court below be reversed. MCCAY, J., announced his concurrence from the bench as follows: If property be demised to A for life with remainder to B and C, and the executor deliver possession of the estate to A, who enters upon the full enjoyment of the lifeestate, she holds it for herself and the remaindermen. And any duty, (as to divide the estate or the like,) put upon the executor by the will, after the determination of the lifeestate, is a special trust, and forms no part of his duty as executor, and the supervision of it does not belong to the Court of Ordinary, but to the Superior Court. VOL. XXXIX-25. Chambliss vs. Phelps. Where one is in adverse possession of land, against the true owner, and rents it to a tenant, avowedly in his character of adverse holder, the tenant cannot attorn to the true owner or deny the adverse possession of his landlord. LAWSON G. CHAMBLISS, plaintiff in error, vs. OLIVER C. PHELPS, defendant in error. 1. A homestead is subject to an execution founded upon a debt contracted for the purchase-money, and the fact that the debt has been transferred to a third person does not change that liability. 2. Although a judgment be dormant under the statute, and has, therefore, lost its lien, as a judgment, it is still a subsisting debt, and the judgment may be revived by scire facias, or by suit. 3. The Acts limiting the time within which judgments may be revived, were suspended by the Acts suspending the Statute of Limitatious, to-wit: from the 30th November, 1861, to the 21st July, 1868, when civil government was practically restored in this State. 4. A creditor, though his claim may be one of the exceptions provided for in the Homestead Act, can not set it up to prevent the laying off of the homestead. Other conditions having been fulfilled, the homestead ought to be set off, leaving to the creditor his right to go on under the exceptions at his discretion. 5. A mortgage, given by the debtor, is not one of the exceptions provided by the Constitution, to which the homestead for his family is liable. WARNER, J., dissenting. Homestead. Constitutional law. Dormant Judgment. Before Judge GREEN. Monroe Superior Court. April Term, 1869. Chambliss petitioned the Ordinary of said county for the exemption from his debts of certain personalty and certain land as his homestead. In obedience to the order of the Ordinary the county surveyor laid off certain five hundred and one acres of land in said county as said homestead, and certified that they were not worth over $2000 00 in specie. Phelps, by his attorney, appeared and objected to the Ordinary approving said exemption, upon the following grounds: Chambliss vs. Phelps. Because he, Phelps, was the holder and owner of a fi. fa., issued from the Superior Court of said county, in favor of Archibald Lary against said Chambliss for $887 53 principal, $3 58 interest, to the date of the judgment, to-wit: the 5th of September, 1856, and interest since, up to date, which judgment was founded upon a note given to said Lary for the purchase-money of said land; and also owner of a mortgage fi. fa., founded upon the foreclosure of a mortgage for $2000 00, made by said Chambliss on said land to said Phelps on the 8th of November, 1858. The rule absolute was taken in said county in August, 1867. Further, he objected because Chambliss had no wife nor minor child dependant upon him as the head of a family. The Ordinary, on the 26th of January, 1869, approved the exemption of the homestead as laid off by the surveyor, and Phelps appealed to the Superior Court. At the trial Chambliss' attorneys read in evidence all the said proceedings before the Ordinary, and closed. Phelps' attorney then offered in evidence his said fi. fa. in favor of Lary, heretofore partially described. Said fi. fa was issued on the 22d of November, 1856. The only entries thereon showed the following facts: On the 22d of November, 1856, Phelps paid Lary $903 43, and he transferred said fi. fa. and judgment to Phelps. On the 27th of February, 1869, it was levied on the lands which had been assigned as said homestead. This fi. fa. was objected to by Chambliss' attorney because it was apparently dormant. The objection was overruled, and the fi. fa. was read in evidence. Said mortgage fi. fa. was also read in evidence. It was admitted that the Lary fi. fa. was founded upon a note given for the purchase-money of said land, and that Phelps paid for said fi. fa., and the cause was argued before the Judge upon that statement of facts. He adjudged that the said approval of the Ordinary be overruled, and the application for exemption be disallowed, until said two fi. fas. were paid. Chambliss' attorneys assign as error the refusal to reject the Lary fi. fa. when offered as evidence, and the decision that the exemption could not be allowed till said fi. fas. were paid. |