Herrington v. Godbee

• Decision Date: 18 January 1924
• Docket Number: 3803.
• Citation: 121 S.E. 312,157 Ga. 343
• Parties: HERRINGTON ET AL. v. GODBEE ET AL.
• Court: Georgia Supreme Court

121 S.E. 312

157 Ga. 343

HERRINGTON ET AL. v. GODBEE ET AL.

No. 3803.

Supreme Court of Georgia

January 18, 1924

Syllabus by the Court.

On March 19, 1869, there was set aside to an applicant as head of a family a homestead, under the Constitution and laws of 1868, in certain personalty and 1,008 acres of land. The applicant and beneficiaries went into possession of the homestead property. In 1867 certain judgments were obtained against the applicant, and they were in existence at the time of the setting aside of the homestead in 1869. On July 22 1873, the applicant filed a petition to the ordinary, asking leave to withdraw the homestead which had been granted by the ordinary, and an order was granted by the ordinary as prayed. On July 28, 1873, the applicant filed a voluntary petition in bankruptcy, and scheduled the 1,008 acres of land embraced in the homestead, and claimed it to be exempt under the Constitution of 1868 and the act of October 3, 1868. The assignee in bankruptcy set apart only 700 acres of the 1,008 acres as exempt, and sold the balance of the homestead land of 300 acres on February 12, 1875, to D., a purchaser at the sale. The applicant and beneficiaries of the exemption all remained in possession of the 700 acres of land allowed by the assignee in bankruptcy, until the death of the head of the family and his wife, and until all the minor beneficiaries became of age. The head of the family died intestate in 1898, and his wife on May 1, 1922. On the last-named date all the children were more than 21 years of age. On September 12, 1922, the latter brought suit as heirs at law of their father, against the vendees of the purchaser at the assignee's sale, to recover the 300 acres of land which had been sold by the assignee in bankruptcy. The defendants answered, denying the right of plaintiffs to recover, and claiming prescriptive title in themselves. On the trial the court directed a verdict for the defendants. Held:

The homestead clause of the Constitution of 1868 of the state of Georgia, and the act of 1868 (Acts 1868, p. 27), passed in pursuance thereof, were in violation of the Constitution of the United States, prohibiting the passage of laws impairing the obligation of contracts, in so far as they authorized the homestead and exemption to be set up against contracts made before the adoption of the Constitution of the state in 1868. The homestead of 1869 was void as against judgment liens obtained against the head of the family prior to the state Constitution of 1868.

(a) Whether the ordinary could grant a valid order allowing the applicant to withdraw his homestead after it was set apart quere? But it is not necessary to decide that question in this case.

The assignee in bankruptcy could administer the assets of the bankrupt for the benefit of his creditors. Where the assignee sold certain property of the bankrupt included in the homestead of 1869, which was subject to the bankrupt's debts contracted before the adoption of the Constitution of Georgia of 1868, and made the purchaser a deed thereto, the latter would obtain, as against the heirs at law of the bankrupt, such title as the bankrupt had in the lands sold and would obtain a good title to that extent.

(a) It will be presumed that all facts existed which were necessary to give the bankruptcy court jurisdiction of the subject-matter, and to render valid and binding the judgment ordering the sale of this property.

Under the facts of this case, the plaintiffs were not entitled to recover the land sold at the assignee's sale, and the court did not err in directing a verdict for the defendants.

Error from Superior Court, Burke County; A. L. Franklin, Judge.

Suit by S. A. Herrington and others against Mose Godbee and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

The homestead clause of the Constitution of 1868 (article 7, § 1), so far as it authorized a homestead to be set up against judgments obtained prior to its adoption against one claiming a homestead under it, held unconstitutional.

On March 19, 1869, there was set aside to Wm. M. Herrington, as head of a family consisting of his wife and minor children in Burke court of ordinary, a homestead under the Constitution of 1868; the property set aside consisting of certain personalty and 1,008 acres of land. Herrington went into possession of the homestead property, together with his wife and children. On July 22, 1973, Herrington and his wife undertook to withdraw the homestead which had been granted to them by the ordinary, and obtained an order for that purpose signed by the ordinary of Burke county, in the following language:

"The judgment of the court having, on motion of Wm. M. Herrington and his wife, Mary Herrington, been opened, on motion of H. C. Glisson, attorney of movants, ordered that the said Wm. M. Herrington be allowed to withdraw his application and said cause stand as though no application ever was filed."

In 1867 certain judgments were obtained against Wm. M. Herrington, some if not all of which were levied upon the property which had been set aside as a homestead in 1869. On July 28, 1873, Wm. M. Herrington filed a voluntary petition in bankruptcy, and scheduled the tract of land embraced in the homestead, and claimed it to be exempt under the Constitution of 1868 and the act of the General Assembly approved October 3, 1868, which provided how constitutional homesteads should be set aside. The assignee in bankruptcy set apart only 700 acres of the 1,008 acres embraced in the original homestead, and sold the remaining 300 acres at public sale to James H. Daniel on February 12, 1875. Herrington and his wife and minor children remained in possession of the 700 acres of land allowed by the assignee in bankruptcy until the death of the head of the family and his wife, and until all of the minor beneficiaries became of age. Wm. M. Herrington died intestate about the year 1898, and his wife died on May 1, 1922. At that time all the children, beneficiaries of the homestead, were more than 21 years of age. S. A. Herrington and the other plaintiffs filed their suit as heirs at law of Wm. M. Herrington, on September 12, 1922, to recover the 300 acres of land which had been sold by the assignee in bankruptcy and bought by James H. Daniel. The defendants, who hold under Daniel, filed their answer, denying the right of the plaintiffs to recover, and claiming prescriptive title in themselves. On the trial the plaintiffs introduced as their chain of title a deed from Martin Herrington to Wm. M. Herrington, dated July 12, 1850, and the homestead approved March 19, 1869. Both plaintiffs and defendants claimed title under the same common grantor, Wm. M. Herrington. The defendants introduced in evidence the order of the court of ordinary of Burke county, Ga., dated July 22, 1873, authorizing the withdrawal of the homestead granted to Wm. M. Herrington, the voluntary petition in bankruptcy of Wm. M. Herrington, and the deed from John H. Perkins, assignee in bankruptcy, to James H. Daniel, a deed from Daniel to M. F. Godbee, and deeds from M. F. Godbee to the other defendants. Oral evidence was also introduced, substantially as stated above. The court directed a verdict for the defendants. The plaintiffs made a motion for new trial, which was overruled, and they excepted.

E. M. Price, of Waynesboro, and Wm. H. Fleming, of Augusta, for plaintiffs in error.

E. V. Heath, of Waynesboro, for defendants in error.

HILL, J. (after stating the facts as above).

The plaintiffs in their motion for new trial assign error upon the direction of a verdict for the defendants by the court on the ground that the land sued for was embraced in a tract of land set apart as a homestead, upon application of Wm. M. Herrington, as the head of a family consisting of a wife and minor children; that the homestead was duly approved by the ordinary of Burke county on March 19, 1869, and was recorded March 26, 1869; that the title to the land is not vested in the plaintiffs in this suit on the death of the beneficiaries of the homestead; that the title to the property was never transferred to any one in any manner provided by the...