Callaway v. Irvin

• Decision Date: 16 June 1905
• Citation: 123 Ga. 344,51 S.E. 477
• Parties: CALLAWAY. v. IRVIN.
• Court: Georgia Supreme Court

123 Ga. 344

51 S.E. 477

CALLAWAY.

v.IRVIN.

Supreme Court of Georgia.

June 16, 1905.

1. Dower—Assignment—Prescription.

Where land belonging to the estate of a decedent is actually admeasured by commissioners appointed to set apart dower to his widow, and she enters into possession of the same with the acquiescence of all persons con cerned, it is not essential to the creation of a dower estate therein that there should be an order of court formally assigning the land to her as dower. It follows that the right to enjoy the reversionary interest in the land is postponed until the termination of the dower estate by her death, and prescription will not run against persons entitled to the reversion until their right of enjoyment accrues.

2. Order—Collateral Attack.

Where the record of a legal proceeding shows on its face that an order passed in vacation by the judge of the superior court is void for want of jurisdiction over the subject-matter, such order may be collaterally attacked at any time by any person who has not by his conduct estopped himself from questioning its validity.

3. Executors and Administrators — Sale of Land—Validity of Order.

Under the act of March 17, 1866 (Acts 1865-66, p. 221), declaring under what circumstances a judge of the superior court may, in vacation, give direction in a case where it appears that it has become impossible to carry out the provisions of a will, jurisdiction of the subject-matter depends upon the consent in writing of all persons at interest who are sui juris that the judge may render a decree. If a feme covert be a beneficiary under a will probated prior to the married woman's act of 1866, and her husband has taken no steps to enforce his marital rights with respect to the devise or bequest made to her by the testator, her written consent that the judge may entertain jurisdiction of a petition for direction presented by the executor is essential to the validity of an order passed in vacation authorizing the executor to sell the property of the estate.

4. Judgment—Res Judicata.

Estoppel by judgment cannot be successfully urged as a defense to a suit brought by a single plaintiff, where it appears that in a former suit, jointly instituted by him and others, with respect to the same matter, the defendant interposed several distinct defenses, some going to the merits of the controversy, and one to the right to maintain the action as brought, and it does not appear upon which of these de fenses the judgment in his favor was rendered.

(Syllabus by the Court.)

Error from Superior Court Wilkes County; H. M. Holden, Judge.

Action by M. S. Callaway against C. E. Irvin, administrator. Judgment for defendant, and plaintiff brings error. Reversed.

On August 25, 1861, Seaborn Callaway died, leaving a will which contained the "following provisions: "Item 2. I wish all my property kept together and used as I have used the same during the life of my wife, she to have the privilege, with the consent of my executors, of giving off to my children, as they become of age or marry, such parts as she and they may select, to be accounted for in the final division, as shall be also what I have given heretofore to any of my children. Item 3. At the death of my wife, I wish my property equally divided between my children. ** * Item 5. If any of my children die without leaving children, I wish the share given to them by this will to revert to my other children. * * * Item 7. In the event of my wife's marriage, I wish her to have an equal part of my estate set off to her, which shall at her death revert to my children under the above limitations." The will was duly probated on September 9th ortie same year, and letters testamentary issued to Simeon Parker Callaway, one of the executors therein named, who was a son of the testator. The property of the estate was kept together until the year 1866, when Mrs. Callaway, the widow of the testator, intermarried with one William Bryant, and gave notice to the executor of her election to take dower. The executor thereupon presented a petition for direction to the judge of the superior court of Wilkes county, reciting in the petition that Mrs. Callaway had remarried and had elected to take dower, and stating various reasons why it was no longer practicable to carry out the intention of the testator of keeping the property together for the support of his family. The executor also set forth the names of the children interested in the estate, some of whom were minors, and stated that one of the adult beneficiaries under the will, Martha L. Callaway, had married Henry E. Spratlin. Included among those alleged to have attained their majority was the name of Marshall S. Callaway. By an order passed at chambers, the judge appointed Spratlin as guardian ad litem to represent the minor children, and he accepted the appointment, and, in his representative capacity, signed a written consent that the judge might at chambers render such decree as he might deem proper under the petition, and might decide any issue of fact that might be raised by any of the parties at interest. This written consent appears to have been signed by Spratlin in his individual capacity also, and by all of the children whom the petition alleged were adults, except the wife of Spratlin, formerly Martha L. Callaway, and the executor. It was also signed by the testator's widow, Mrs. Bryant, and by William Bryant, with whom she had intermarried. At chambers, on December 13, 1866, the judge passed an order which recited that "the parties interested" had requested that he should "decide the various matters presented in said will, " and which directed the executor to sell at public sale, in the same manner as executors usually sell, "all the property of [the testator], except so much as may be set off for the widow's dower." The executor was also, by this order, given instructions as to how to make distribution of the proceeds of the sale. The land belonging to the estate was brought to sale by the executor under this order, was bid off by Samuel Barnett, and on February 5, 1867, the executor made to him a deed. The purchaser at the sale subsequently conveyed the land to Gabriel Toombs, and from him it passed by a chain of deeds, made by persons claiming under him, to Barnett Irvin, to whom it was conveyed on January 6. 1886. The conveyances last referred to purported to convey a fee-simple estate in the land, Samuel Barnett having on January 9, 1867, prior to the executor's sale, secured a deed from William Bryant and his wife, formerly Mrs. Calla way, to that portion of the tract which she claimed as dower. The portion so claimed as dower was run off and platted by commissioners, she took possession of it as her dower, and it was so treated by all persons concerned, though no order of court formerly setting it apart as dower appears of record. Barnett Irvin and his predecessora in title under the executor's sale and the deed conveying the dower interest remained in undisturbed possession of the land up to the time of the death of Mrs. Bryant, which occurred in December, 1898. On January 12, 1900, Simeon Parker Callaway, Marshall S. Callaway, and others claiming under the will of Seaborn Callaway brought against Barnett Irvin an action to recover the tract of land which Mrs. Bryant had claimed as dower. Soon thereafter Barnett Irvin died, and his administrator, Charles E. Irvin, was made a party defendant in his stead. The defense interposed was (1) title derived from Samuel Barnett; (2) title by prescription, and the making of valuable improvements on the land; (3) a denial that dower was ever set apart to the widow of Seaborn Callaway: and (4) estoppel operating against Simeon Parker Callaway from asserting title to the premises, he having, in his capacity of executor of Seaborn Callaway, conveyed the land by absolute deed to Samuel Barnett, the defendant's predecessor in title. The case was tried by the court, without the intervention of a jury, upon an agreed statement of facts, and judgment in favor of the defendant was rendered. The case was then taken to the Supreme Court for review, but was there dismissed for want of prosecution.

The present action is a complaint for land brought by Marshall S. Callaway on October 3, 1903, against Charles E. Irvin, as administrator of Barnett Irvin, to recover a one-seventh undivided interest in the tract of land in which the plaintiff's mother, Mrs. Bryant, claimed a dower estate. In addition to the defenses interposed to the previous action to which the plaintiff was a party, the administrator filed a plea of res adjudicate. By an amendment to his petition the plaintiff alleged that the order under which the land was sold at executor's sale was void for want of jurisdiction on the part of the judge of the superior court to pass it in vacation without the written consent of all parties at interest, and the sale was attacked on the ground that it was not made in conformity to the order, and for other reasons. The case proceeded to a trial on the merits, and resulted in the direction of a verdict in favor of the defendant. Exception is taken by the plaintiff to the disposition thus made of his case.

S. H. Sibley, for plaintiff in error.

S. H. Hardeman, for defendant in error.

EVANS, J. (after stating the facts). 1. As the land which Mrs. Bryant claimed as dower was actually admeasured by commis-sioners appointed to set apart dower to her out of the lands of her deceased husband, and as she went into possession of this tract, and all persons concerned acquiesced in her assertion of a dower estate therein, including the defendant's predecessors in title, it matters not that no formal judgment of the superior court of ordinary assigning dower to her was shown to have been rendered. Wells v. Dillard, 93 Ga. 682, 20 S. E. 263. The right of action of the plaintiff did not accrue until the death of Mrs. Bryant. Id., at page 683 of 93 Ga., page 264 of 20 S. E.; ...