Pritchett v. Davis
| Decision Date | 21 May 1897 |
| Citation | 28 S.E. 666,101 Ga. 236 |
| Parties | PRITCHETT et al. v. DAVIS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where, upon the refusal of a husband and father, who was the head of a family consisting of a wife and minor children, to apply for and have set apart out of his property, for the benefit of such wife and minor children, a homestead of realty, the wife applied for and had such homestead set apart, a lease executed by such husband and father subsequent to the setting apart of the homestead, and during its existence, purporting to convey to third persons all rights to the timber, for turpentine purposes, situate and growing on the land so set apart, and conveying, also, all the right title, and interest of such head of the family in. the sawmill timber on the land, to be cut by the lessees or their assigns within 10 years, was void, and conveyed no rights in such lands, nor the timber thereon, to the lessees.
2. A proceeding to enjoin an interference with the right or possession by the beneficiaries of property set apart as a homestead may properly be instituted directly by them.
3. In the trial of a case involving the fact of the setting apart and valuation of a homestead, the original homestead papers are primary evidence; the record, secondary.
4. There was no error in granting the injunction in the case made against both of the original lessees.
Error from superior court, Montgomery county; C. C. Smith, Judge.
Suit by Mary Davis and others against William Pritchett and others for an injunction and other equitable relief. From a judgment for plaintiffs, defendants bring error. Affirmed.
The following is the official report:
Mrs Davis, for herself and as next friend of her two minor children, brought her petition against William & T. J Pritchett, alleging that plaintiffs held the paramount right to the exclusive possession, use, and control of a tract of land described, which had been set apart for their use and benefit, as a homestead, out of the property of Arthur Davis the husband and father of the plaintiffs; that defendants had entered on the land, and, without lawful right, were proceeding to cut and box for turpentine the pine timber growing thereon; that they had already greatly damaged plaintiffs by such cutting and boxing, and would subject them to still greater damage unless immediate steps were taken to prevent them. The prayer was for an injunction; for the recovery of such sum, as damages, as might be proper; and for general relief. T. J. Pritchett pleaded that the suit, as to him, should abate, as he had no interest whatever in the subject-matter thereof. William Pritchett demurred for want of equity, and for misjoinder of T. J. Pritchett as a party defendant. He answered, setting up that the title to all the timber on the premises suitable for sawmill and turpentine purposes was in him; that on December 21, 1894, the firm of William & T. J. Pritchett acquired the timber by purchase from Arthur Davis, as the head of the family, but with the full knowledge, consent, and ratification of plaintiffs, who received in payment therefor the full benefit of the purchase price, in money, family supplies, and necessaries furnished by said firm to, and used by said family; that on February 13, 1895, William Pritchett became the sole owner of the timber, by purchase of the interest of T. J. Pritchett; that the premises had not been legally set apart to petitioners that William Pritchett had boxed about one-third of the timber for turpentine, which he had a legal and moral right to do, by virtue of his purchase, and the attempt to interfere and prevent him from so doing is a part of a deliberate effort on the part of plaintiffs to overreach, cheat, and defraud him; that he is abundantly solvent, and able to make any bond for the security of any right plaintiffs may have. By way of cross bill, he alleges that recently Mary Davis and Arthur Davis, for the purpose of defrauding and damaging defendant, had confederated with several named persons, and, against his protest, had entered upon the premises and cut therefrom about 100 sticks of the best pine timber, and were proceeding to remove the same, and in addition thereto had deadened the timber on about 10 acres of the land, and were threatening and endeavoring to continue with the greatest rapidity so to do. Wherefore he prays that they be enjoined. On the hearing the plaintiffs tendered in evidence certain original homestead papers, including the petition therefor, affidavit to the same, schedules, and approval and entry of record. Defendants objected on the ground that the original papers were not the best evidence of the setting apart of the homestead, but the same should be proved by a certified copy from the records in the office of the clerk of the superior court. The objection was overruled. These homestead papers appeared to have been filed on November 12, 1884, and passed upon and approved by the ordinary on December 1, 1884, and recorded on December 9, 1884. As part of them, there was offered a sworn return of the county surveyor, that, in pursuance of an order to him by the ordinary, he did on November 24, 1884, lay off and plat from the lands described in the order, for Mary Davis, wife of Arthur Davis, a homestead of 918 acres, more or less, of the value of $500. The surveyor's plat accompanied said affidavit. Defendants offered in evidence a certified copy, from the records of the superior court, of the petition of Mary Davis, with the schedules and affidavits thereto, being similar to the corresponding portions of the papers introduced by plaintiffs and being accompanied by a similar plat, but having no sworn return of the county surveyor, and no entry of approval by the ordinary. The certificate to this copy by the clerk was "that the above is a true copy from the records of the homestead," etc., "of Mary Davis," under the hand of the clerk and the seal of the court. This copy was excluded from evidence upon the grounds that the certificate was insufficient and illegal, and that the original homestead papers were the highest evidence. The testimony of Arthur Davis, his wife, Mary, and their son, was, in brief, that the lease from Arthur Davis to William & T. J. Pritchett, of December 21, 1894, was not made in the presence of any of the beneficiaries of the homestead, nor did any of them have any knowledge of the making of the same, and Mary Davis protested against it when informed that it had been done; that she has not, by any word or act, ratified such lease; that not one dollar of the purchase money agreed to be paid for the timber embraced therein has ever been paid, nor have any family supplies or necessaries, or other thing of value, been paid to Davis or his wife and children for the turpentine and timber privilege; that, at and before the making of the lease, Arthur Davis informed T. J. Pritchett of the existence of the homestead, and also informed William Pritchett of that fact, and told him that he (Davis) had no legal right to give a lease on the homestead. Defendants introduced a lease from Arthur Davis to Pritchett & Rhodus, dated March 9, 1891, recorded April 1, 1891, and conveying to them, their heirs and assigns, all right to the entire timber suitable for turpentine purposes on 847 acres of the land in question, for three years from the time the timber is boxed, together with right of way and use of the timber for staves, hoops, still houses, etc. The consideration of the lease was that the lessees should pay to Davis $150 on March 9, 1891, and the balance, if any, to be paid when the timber was boxed or cut. Also, the lease referred to in the pleadings, from Davis to William & T. J. Pritchett, of all the timber suitable for turpentine and rosin on 871 acres of the land in question, for three years from the boxing of the same,--such boxing to commence within 10 years from the date of the contract,--together with right of way. The consideration stated was $450, "this day paid to Davis," the receipt of which was acknowledged; this being an advance payment for 22,500 turpentine boxes to be cut on the land, at the rate of $20 per 1,000; future payments...
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