Stephens v. Carter

• Decision Date: 09 October 1959
• Docket Number: No. 20575,20575
• Citation: 110 S.E.2d 762,215 Ga. 355
• Parties: John Amos STEPHENS et al. v. Nancy Lee CARTER.
• Court: Georgia Supreme Court

Page 762

110 S.E.2d 762

215 Ga. 355

John Amos STEPHENS et al. v. Nancy Lee CARTER.

No. 20575.

Supreme Court of Georgia.

Oct. 9, 1959.

Syllabus by the Court.

1. The equitable petition to enjoin the defendants from claiming title or any remainder interest in the described property, in the possession of the plaintiff, and to decree title in the plaintiff, was not subject to the demurrers of the defendants.

2. The plea and answer of the defendants was properly stricken on demurrer.

3. It was not error to admit in evidence the record of the year's support award.

4. There is no merit to the second ground of the amended motion for a new trial.

5. The evidence demanding a verdict for the plaintiff, it was not error for the court to so direct.

Robt. D. Tisinger, Carrollton, for plaintiff in error.

Boykin & Boykin, Shirley C. Boykin, Wm. P. Johnson, Carrollton, for defendant in error.

ALMAND, Justice.

The bill of exceptions assigns error on: (a) the overruling of the defendants' demurrers to the plaintiff's petition; (b) the sustaining of the plaintiff's demurrers to the answer of the defendants, and the striking of said answer; and (c) the denying of the defendants' motion for a new trial.

1.] Mrs. Nancy Lee Carter by her equitable petition sought to enjoin the defendants, John and Robert Stephens, from claiming or disparaging the title of the plaintiff to a certain tract of land known as 97 Dixie Street in the City of Carrollton, and to have the title as against the defendants decreed in her. She alleged: She is the widow of Dr. J. R. M. Carter, who died in 1933 leaving a will, wherein he undertook to devise to the defendants a remainder interest in the Dixie Street property, the plaintiff at that time having a life estate in the property. In 1933 she filed an application for a year's support; appraisers were appointed; a caveat was filed to their return, and finally, on appeal to the superior court, upon a verdict of a jury a decree was entered in October, 1934, awarding the plaintiff all the household and kitchen furniture and the remainder interest in the Dixie Street property as a year's support. She set out as her muniments of title: (a) the year's support decree; (b) a warranty deed from Dr. J. R. M. Carter to J. W. Carter; (c) a quitclaim deed from J. W. Carter to the plaintiff; and (d) that she had been in exclusive and continuous possession of the land since the date of her husband's death. She alleged that it is necessary for her support and maintenance for her to sell the property, but the defendants are claiming title under the will of Dr. Carter to the remainder interest, and their claim is in disparagement of her title and is a cloud upon it.

The general demurrers to the amended petition were: (a) that the petition set forth no cause of action; (b) that it does not show that the defendants were parties to the year's support proceedings or had notice of them; (c) that the claim of title under the year's support decree is invalid because title to the Dixie Street property was in J. W. Carter at the time the decree awarded her a year's support; (d) that her claim of title through J. W. Carter is inconsistent with her claim that title was in her husband's estate at the time of the award; and (e) that the petition asserted two causes of actions and was duplicitous.

We are of the opinion that the amended petition was not subject to any of these objections. The petition alleges that the plaintiff is in possession of the property. The plaintiff and defendants claim title from a common source. She alleges her title to be by the year's support decree conveying whatever interest Dr. Carter had in the property and a deed from Dr. Carter to J. W. Carter and a deed from J. W. Carter to her. The petition stated a cause of action to quiet her title. Code, § 37-1407; Mentone Hotel & Realty Co. v. Taylor, 161 Ga. 237, 130 S.E. 527; Hale v. Turner, 185 Ga. 516, 195 S.E. 423.

We know of no provisions of law that require service or notice of the widow's application for a year's support to be had upon the devisees in the husband's will. Code, § 113-1002 provides only for service to the administrator or executor of the husband's estate if there be one.

The petition does not allege the date of the deed from Dr. Carter to J. W. Carter, but does allege that Dr. Carter purported to devise the remainder interest in the 97 Dixie Street property to the defendants. The petition is not subject to the objection that it shows Carter had no interest in the property at the time of his death or that it is duplicitous.

2.] We now consider the demurrers of the plaintiff to the defendants' plea and answer. In their answer the defendants alleged: (a) that they were not bound by the year's support judgment because they were not notified and were not parties to the proceedings; (b) that Dr. Carter entered into a marital settlement with the plaintiff in 1925 wherein the property rights between the parties were settled, and the plaintiff was bound by the terms of the settlement.

The demurrers of the plaintiff to these defenses were sustained. As we have held above, the defendants were not entitled to notice of the application for a year's support. The right of the plaintiff to a year's support in the remainder interest of the property was adjudicated in the judgment of October, 1934, and the contention that the plaintiff was barred from claiming a year's support by virtue of the marriage contract of 1925 was not a good defense to the year's support, award. When property is set apart to a widow as a year's support she receives just such title as her deceased husband had, and acquires no greater title by reason of the setting apart to her. Lowe v. Webb, 85 Ga. 731, 11 S.E. 845. The judgment awarding the property to the plaintiff bears the presumption that everything necessary to authorize the judgment was properly done. Stringfellow v. Stringfellow, 112 Ga. 494, 37 S.E. 767. Such judgment is not subject to a collateral attack except for a want of jurisdiction apparent on the face of the record. Tabb v. Collier, 68 Ga. 641(2); Groover, Stubbs & Co. v. Brown, 118 Ga. 491(2), 45 S.E. 310; Reese v. Reese, 146 Ga. 684, 92 S.E. 218; Brownlee v. Brownlee, 203 Ga. 377(3), 46 S.E.2d 901. The case of Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316, holds that, in an action to quiet plaintiff's title under a year's support award, a plea by the defendant that the widow had elected to accept a provision in her husband's will in lieu of a year's support was a collateral attack upon the year's support decree and did not set forth a valid defense. The court did not err in sustaining the demurrers to the answer of the defendants.

Subsequently to the sustaining of the demurrers, the defendants amended their answer. To the amended answer they attached a copy of a contract between Dr. Carter and the plaintiff, entered into in 1925, in which the plaintiff acknowledged receipt of personal property and the right to occupy the home for life in lieu of a year's support, and alleged that Dr. Carter in 1932 conveyed a life interest in the Dixie Street property to the plaintiff; that under the will of Dr. Carter she had accepted a bequest in lieu of a year's support; and that the decree awarding a year's support was void because it attempted to deprive them of their property rights in a proceeding in which they were not parties.

The plaintiff renewed her demurrers to the answer and moved to strike the amendment and the answer on the ground that the year's support award had adjudicated these questions, and the answer constituted no defense.

The petition, in pleading the record in the year's support proceeding, alleges that the executors in their...