Green v. Hambrick

• Decision Date: 14 August 1903
• Citation: 118 Ga. 569,45 S.E. 420
• Parties: GREEN. v. HAMBRICK.
• Court: Georgia Supreme Court

45 S.E. 420

118 Ga. 569

GREEN.

v.HAMBRICK.

Supreme Court of Georgia.

Aug. 14, 1903.

WIDOW'S ALLOWANCE—ELECTION—PLEADING —STRIKING ANSWER.

1. Can an order setting apart a homestead operate as color of title so as to be the basis of a prescription in favor of the head of the family?

2. A widow is not entitled to homestead and year's support where the aggregate of the two provisions exceeds the amount which may be set apart as a homestead and exemption under the laws of this state.

3. An election by a widow is not binding unless made with a knowledge of the condition of the estate and all material facts connected therewith; nor does she lose her vested right in a homestead by merely obtaining an unsatisfied money judgment for a year's support.

4. Where, in a petition, there are two counts, and the paragraphs thereof, instead of being numbered consecutively, are each numbered from 1 to 9, and the answer is not more definite than the petition, but adopts the same numbering, the plaintiff at the trial term cannot have the answer stricken because of its failure to answer each paragraph of each count.

5. Motions to strike the answer for defects in form must be made before the trial term, since the defendant, if the same be stricken, has 30 days within which to open the default.

(Syllabus by the Court.)

Error from Superior Court, De Kalb County; J. S. Candler, Judge.

Action by J. Howell Green against R. M. Hambrick. From judgment of nonsuit, plaintiff brings error. Affirmed.

Green, administrator of Hambrick, brought complaint for land against R. M. Hambrick, to recover lot number 122 in De Kalb county. There were two counts in the petition. One set up a prescriptive title by reason of possession since 1855. There had been occupation and cultivation of a portion of the tract, but no inclosure; and, it being doubtful as to the extent of the possessio pedis, the plaintiff in his second count alleged that the lot had been set apart as a homestead in 1869, and that the plat attached to the proceedings defines the boundaries; and the administrator claimed that these homestead proceedings were color of title, and that his intestate had been in possession thereunder for more than seven years. On the trial the judgment of the ordinary, setting apart the land as a homestead, was offered in evidence, when the defendant insisted that, inasmuch as the widow, the beneficiary thereunder, was still in life, the plaintiff showed an outstanding life estate in her, and could not recover possession of the property. For the purpose of meeting this contention, the plaintii^ then offered in evidence an application by the widow for a year's support, with the order setting apart to her certain personal property and a money judgment to be made out of the realty belonging to the intestate. There is nothing in the record which shows whether the deceased owned any other property than that sued for. The judge excluded the record of the year's support, and awarded a nonsuit.

J. Howell Green, for plaintiff in error.

Candler & Thomson, for defendant in error.

LAMAR, J. According to many decisions, there must be a grantor and a grantee named in the paper in order for it to operate as color of title, though in this state a decree has been held sufficient for that purpose. Wardlaw v. McNeill, 106 Ga. 29, 31 S. E. 785. The authorities are in conflict as to whether a homestead is the creation of a new estate or merely an incumbrance on the fee. If the latter, it could no more be color of title than a mortgage on the same land. In Keener v. Good-son, 89 N. C. 277, it was held that a judgment setting apart a homestead is not color of title; for it is in no sense a conveyance of land, nor does it profess to pass any title whatever. It in no way changes the title. It creates in the applicant no new estate, and has no other effect than to attach to his existing estate the quality of exemption from sale under execution. On the other hand, there are decisions which seem to intimate that it is in the nature of a new trust estate, the title to which and the increase from which, during its continuance, belong to the beneficiaries. In this state it has been held to be "an estate vested in the family." Heard v. Downer, 47 Ga. 629. Possession, to be the foundation of a prescription, must be in the right of the possessor, and not of another (Civ. Code 1895, § 3584); and if the order setting apart the homestead be treated as the creation of an estate, and therefore color of title, the question would remain as to the character of the prescriptive title created by seven years' possession thereunder. Would it create a fee-simple estate in the beneficiaries; a fee simple in the head of the family, as trustee for the beneficiaries; a fee simple in the head of the family for the beneficiaries during life or minority, with reversion to the head of the family in fee; or would the prescription merely protect the character of the estate being prescribed, and terminate when the homestead was at an end? As the interest of others, who are not before the court, may be involved, and as it is not necessary to determine this point, we do not further deal with this...