Burns v. Lewis

• Decision Date: 07 February 1891
• Citation: 13 S.E. 123,86 Ga. 591
• Parties: Burns et al. v. Lewis.
• Court: Georgia Supreme Court

13 S.E. 123

86 Ga. 591

Burns et al. v. Lewis.

Supreme Court of Georgia

February 7, 1891

Syllabus by the Court.

1. Where in a suit for divorce the verdict of the second jury finds in favor of a total divorce, and expressly disallows anything for alimony to the wife, the husband's property embraced in the schedule filed with the divorce proceedings remains his property just as though the jury had disposed of it by awarding it to him; and this is true whether any judgment or decree has been entered upon the verdict or not.

2. By the constitution of 1868, in suits for divorce the function of regulating the rights and disabilities of the parties devolved on the jury rendering the final verdict, subject only to a power of revision by the court. A final verdict in favor of a total divorce was sufficient to dissolve the marriage, though it was silent as to rights and disabilities and though no judgment declaring the marriage dissolved was actually entered up; the verdict, so far as appears, not having been set aside or interfered with by the court.

3. On the dissolution of a marriage by total divorce the wife ceases to be a member of the husband's family as effectually as if she were dead. She is therefore no longer a beneficiary of a homestead set apart in his property. Her right to use or enjoy the property as a homestead terminates with the expiration of the coverture.

4. Where a creditor seeks to charge homestead property as such the proceedings must conform substantially to remedies enforceable against trust-estates. A trust-estate is not subject to attachment on the ground that the trustee is a non-resident of the state; nor is an alleged homestead subject to attachment as such on the ground that the owner is a non-resident. In this case there was no debt other than one contracted by a former beneficiary after the homestead had determined. The judgment founded on an attachment for such a debt was void on the face of the proceedings, and a sale under it passed no title.

5. One in possession of real estate under color of title and claim of right is subject to be assessed for the taxes accruing thereon pending such possession, and if such person allows the premises to be assessed and sold for taxes as the property of a former occupant, who has neither title nor possession, such sale being made under a general fi. fa in personam not specifying any particular property to be seized, he cannot strengthen his title by purchasing at such sale, or from the purchaser at that sale. Any purchase so made by one subject to assessment will be treated as merely paying the taxes or redeeming the property.

( a) Sundry observations on the proper mode of issuing tax fi. fas. where the owner of realty assessed is unknown or doubtful.

Error from superior court, Fulton county; Marshall J. Clarke Judge.

Bleckley C.J.

A great many grounds are embraced in the motion for a new trial. Severally and collectively they raise the general question whether the court erred in overruling the motion. There are controlling elements of the case which will enable us to decide this general question without discussing separately the grounds of the motion in detail. The conclusion at which we have arrived is that, though errors were committed on the trial, none of them were of such a character as to warrant the court below, or this court, in setting aside the verdict.

1. For the sake of clearness we shall first consider the right of Lewis to recover in his complaint for land in the nature of ejectment against Mrs. Lewis, irrespective of the claim of Mrs. Burns. The premises in controversy consisted of a parcel of land fronting 103 1/2 feet on Emma street, and running back (same width) 185 1/2 feet to D'Alvigny street, the same being lot No. 25 in the subdivision of the Loyd property, in the city of Atlanta, and containing a half acre, more or less. The action was brought in September, 1874. Did Lewis, the plaintiff, have title and the right of possession at that time as against Mrs. Lewis, the defendant in the action? The lot was conveyed to Lewis in 1868, while these parties were husband and wife. On the 10th of April, 1869, she applied for it to be set aside as a homestead, reciting that the family of Lewis consisted of himself, herself, and one child. The application also recited the deed by which Lewis acquired title, and stated that she applied for exemption of the property as a homestead because he failed and refused to do so. After regular proceedings by survey, plat, etc., the homestead was approved by the ordinary on the 26th of April, 1869. This was done pending a suit for divorce which had been brought by Mrs. Lewis against Lewis upon the same day on which her application for homestead was filed. The first verdict in the divorce suit was rendered at the April term, 1871. The date of the second verdict does not appear in the transcript of the record, but from divers facts it is manifest that the second verdict was rendered prior to the commencement of the action of complaint by Lewis against Mrs. Lewis for the recovery of the premises. Neither of the verdicts makes mention of any child or children, and, as there is no such reference elsewhere in the record other than in the application for homestead, the presumption is that the child if any, had died before the parents were divorced. Should the fact be otherwise, the rights of the child under the homestead proceedings will not be affected by the result of this litigation. Its life or death may therefore be treated, and was treated below, as immaterial to a right disposition of the present controversy. This city lot was, by schedule, embraced in the pleadings in the divorce suit, and thus was before the court for disposition by the second jury. Code 1868, §§ 1719, 1721, corresponding to Code 1882, §§ 1720, 1722. The verdict of that jury granted a total divorce to both parties, and expressly declared that no alimony was to be set apart for the support of the wife. Otherwise the verdict was silent as to property, but the fair implication is that the intent of the jury was that this lot, which was the only property specified in the schedule, was to be and remain the property of the husband. The verdict is to be understood as denying the wife any enjoyment of it after the marriage was dissolved, and as leaving the ownership in the husband. Barclay v. Waring, 58 Ga. 86. So far as appears, no judgment or decree of the court was rendered in the divorce suit, either declaring the marriage dissolved or making any disposition of the scheduled property. Doubtless the law contemplates that some judgment should be rendered. Indeed, the Code is express, where the verdict disposes of property, that the court shall enter such judgment or decree, or take such other steps usual in chancery, as will effectually execute the verdict. Code 1868, § 1723; Code 1882, § 1724. But where the verdict denies alimony and in effect leaves the property unchanged in ownership, no judgment or decree is essential to carry the verdict into effect, so far as property rights are concerned. In the case above cited none such was rendered, and this court ruled that the divorce worked no change in the title.

2. After the rendition of two verdicts in favor of the divorce, was it indispensable that a judgment declaring the divorce granted should have been entered up in order for the marriage to be legally dissolved and Mrs. Lewis eliminated from the family of her husband? This might have been necessary had the proceeding been governed by the constitution of 1865, as was that in Clark v. Cassidy, 62 Ga. 408, 64 Ga. 662. Under that constitution it devolved upon the court to regulate the rights and disabilities of the parties. Irwin's Code, § 4964. But by the constitution of 1868 this function was lodged with the jury rendering the final verdict, subject only to a power of revision by the court. Code 1873, § 5116. It was under this latter constitution that the divorce suit of Mrs. Lewis against her husband was begun and terminated. The final verdict, being in favor of a total divorce, admits of no construction but that the jury intended the marriage should be dissolved, and we think the revising power of the court contemplated by the constitution of 1868 would not extend to this element of the verdict, but only to any special findings, had the verdict embraced any, touching the rights and disabilities of the parties. The verdict being silent as to the rights and disabilities of the parties, there was nothing over which the revising power of the court could be exercised. The only judgment which could have been rendered was one declaring a total divorce. This being so, we think the omission to enter up such a judgment was not matter of substance, and that the legal effect of the final verdict was to dissolve the marriage ipso facto. It may be added that Mrs. Lewis does not controvert the completeness or finality of the divorce. In her answer to the bill filed by Lewis in connection with his original suit against her for the land she, by implication, admits that a decree was rendered in the divorce case, for she mentions a decree by name. As we find none, however, in the record, we dispose of the question independently of her answer.

3. The dissolution of the marriage severed Mrs. Lewis from the family, and she was no longer a beneficiary of the homestead. By the constitution of 1868 her husband, as the head of a family, had the right to a homestead, of which the sole beneficiaries were the members of his family. Code 1873, § 5135. By statute she, as his wife, was empowered to have the homestead set apart if he failed or refused to do so. This right she exercised, but the fact that the property was set apart on her application would give her no better...