Lunsford v. Kersey

• Citation: 13 S.E.2d 803,191 Ga. 738
• Decision Date: 15 March 1941
• Docket Number: 13587.
• Parties: LUNSFORD v. KERSEY.
• Court: Supreme Court of Georgia

13 S.E.2d 803

191 Ga. 738

LUNSFORD v. KERSEY.

No. 13587.

Supreme Court of Georgia

March 15, 1941

Syllabus by the Court.

1. In a case where a widow has made application for year's support, the appraisers have filed their return, and citation has been published, and a creditor of the deceased husband appears at the proper time and place for the purpose of filing objections on appropriate grounds, and upon agreement of counsel that if objections are not filed the creditor's claim may, by judgment of the ordinary on the return, be placed in superior rank by reducing the estate awarded the widow, under principles of estoppel pleaded against her she may not thereafter in an equitable proceeding question the validity of such judgment.

2. A widow holding property set apart to her as a year's support subject to an outstanding debt and mortgage of her deceased husband may convey the same to secure the payment of the outstanding encumbrance and to prevent its foreclosure and will be bound by such conveyance.

3. Under the foregoing principles the judge erred in directing the verdict for the plaintiff, there being evidence to authorize findings as dealt with in the opinion.

Mrs. L. W. Kersey by her petition in equity sought to enjoin Lunsford from selling (under power of sale in a security deed) certain described land. She contended that the land, which had been the home place of her deceased husband had been set aside to her as a year's support, and that the deed by which she had conveyed the land to Lunsford was given by her as security for a debt of her husband and as to her was without consideration, Lunsford answered, and upon a trial of the case the judge directed a verdict for the plaintiff on evidence, within the scope of the pleadings, substantially as follows: When Mrs. Kersey's husband died he was indebted to Mrs. Rouse on a note secured by a mortgage on this land. Mrs. Kersey applied for a year's support. Appraisers were appointed, and they made a return setting apart this described land at the value of $800. Citation was published, calling for any objections to be made by first Monday in March, 1932. On that date Mrs. Rouse and her attorney appeared at the ordinary's office for the purpose of filing objections to the allowance, on the grounds that the property was worth more than the valuation placed on it by the appraisers, and that the award was excessive, especially considering the insolvency of the estate. They communicated with the attorney for Mrs. Kersey and stated their purpose; whereupon there was some negotiation resulting in an agreement that no objection would be filed, and that a judgment of the ordinary be taken modifying the return by making the property as set apart 'subject to' the debt and mortgage. This being consented to by all parties, the judgment was taken. Later Mrs. Kersey made some payments on the note, and when it came into Lunsford's hand (by the will of Mrs. Rouse, who had died) to prevent his foreclosing the mortgage, Mrs. Kersey executed a new note to him for the amount due (less some discount allowed by him), and a deed to this property to secure its payment, Lunsford surrendering the old note and mortgage. The amount of the debt was about $200, and there was some claim that the property was worth as much as $2,000. On the trial it was not admitted by Mrs. Kersey that she knew that the agreement was to set the property apart 'subject to' the debt; but there seems to be little dispute as to what occurred, and the judgment itself was prepared by and consented to by her attorney.

J. H. Tipton, of Sylvester, for plaintiff in error.

R. S. Foy, of Sylvester, and C. W. Foy, of Butler, for defendant in error.

REID Chief Justice.

The questions are, did the widow take a full estate in the property under the proceedings in the court of ordinary, or did she take it 'subject to' the debt and mortgage; and if she did take it subject, was her subsequent security deed binding? It is strongly contended in her behalf that since the return of the appraisers as filed by them did not make it subject, and since no objections to their return were filed, the ordinary was without jurisdiction to modify the return and thereby reduce her estate, and that consequently she should prevail, since, as contended, she may not use her support to pay the debt of her husband. Of course, at the outset it is observed that a year's support is made by law superior to a mortgage. Code, § 113-1508. The decision in Holamon v. Jenkins, 50 Ga.App. 129, 177 S.E. 262, is relied upon entirely by Mrs. Kersey's counsel, and questions as to whether she may be barred from proceeding in equity upon other considerations are not discussed, although defendant's answer set up estoppel on her part. In that case it was held that where no objections to the return of the appraisers were filed, and after due citation and notice the return was recorded by the ordinary, "such a record has the binding force and effect of any other judgment,' without the need of any other act by the ordinary or power on his part to modify the return. Watson v. Watson, 143 Ga. 425, 427, 85 S.E. 324, 325; Jackson v. Warthen, 110 Ga. 812, 814(2), 36 S.E. 234; Selph v. Selph, 133 Ga. 409, 410(2), 65 S.E. 881; Moore v. Moore, 126 Ga. 735, 738, 55 S.E. 950; Fulghum v. Fulghum, 111 Ga. [635], 637, 36 S.E. 602, 37 S.E. 774. This for the reason that unless objections are filed, and further duties on the part of the ordinary are purely ministerial. If, however, objections are filed, the rule is different, and he thereafter discharges a judicial function in determining the issues made by the return and the objections, and, in such event, he is not without power to amend or alter the return. Winn v. Lunsford, 130 Ga. 436, 440(2), 61 S.E. 9; Cowan v. Corbett, 68 Ga. 66, [69]; Jackson v. Warthen, supra, pages 814, 815 of 110 Ga. 36 S.E. 234.' It was further held in the case there under consideration, that, no objections having been filed, and the return having been recorded by the ordinary, 'he thereby expressed the full extent of his powers as ordinary with reference to the return, and his effort, after reciting in his order the absence of any objections to the return of the appraisers as made, to exercise a judicial rather than a ministerial function in seeking to modify the return of the appraisers by making it subject to the payment of a stated debt due by the decedent, was invalid and inoperative.' That ruling, in our opinion, is based upon authority and upon sound legal principles. Compare Howell v. Howell, 188 Ga. 803, 4 S.E.2d 835; Id., 190 Ga. 371, 9 S.E.2d 149. But, in the view we take of the present case, we must determine whether the plaintiff here can under principles of equity have it invoked in her behalf. We frequently find instances where, due to the situation of the parties, a legal principle which would normally fit the case can not be applied. 'He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit.' Code, § 37-104.

In Bigham v. Kistler, 114 Ga. 453, 456, 40 S.E. 303 305, it was held: 'Where, by acts and statements of a defendant, a plaintiff is misled into the belief that the defendant will not resist the plaintiff's claim, and he, acting under this belief, fails to appear and prosecute his claim, as he would have done but for these statements of the defendant, it would be unconscionable to allow the defendant to take advantage of the plaintiff's absence, and have a decree entered in his favor which concluded for all time the plaintiff's right to enforce his claim.' In Giles v. Cook, 146 Ga. 436, 91 S.E. 411, a distress warrant had been levied, and the tenant agreed with the landlord on the delivery of the property and upon a settlement which would have dispensed with further proceedings. The court held that a judgment afterwards taken against the landlord without notice in that proceeding could be relieved against in equity. In Oliver v. Godley, 38 Ga.App. 66, 142 S.E. 566, 567, the Court of Appeals was dealing with a case where counsel for the opposing parties had agreed upon consideration that certain pleadings would be dismissed and defenses thus waived, and that they 'would try it all together.' It was held, that, the defendant having thus dismissed his plea in abatement, 'the plaintiff was estopped from attacking the plea of set-off upon the ground that the cause of action therein relied on was not a proper matter for such a plea.' In passing upon the question the court quoted the following from Seals v. Stocks, 100 Ga. 10, 30 S.E. 278: "This result grew out of the mutual mistake of counsel as to a matter of law, viz.: As to how their agreement could be legally carried into effect. It would be manifestly unfair to allow one of the parties to profit thereby, deriving an advantage not contemplated by the agreement as actually made. Indeed, our Code distinctly recognizes the equitable principle that relief from the consequences of a mistake of law will be granted where, through a misconception on the part of both parties to an agreement, the language employed to express the same has a different legal meaning from that contemplated, and 'operates as a gross injustice to one' of the parties, 'and gives an unconscientious advantage to the other.' Civil Code, § 3979 (Code of 1910, § 4576)." Citing further, Johnson v. Wright, 19 Ga. 509; Johnson v. Georgia Fertilizer & Oil Co., 21 Ga.App. 530, 94...