West v. McWhorter
| Decision Date | 23 April 1914 |
| Docket Number | 292. |
| Citation | 81 S.E. 859,141 Ga. 590 |
| Parties | WEST ET AL. v. MCWHORTER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a homestead was applied for on December 4, 1877, and the return of the county surveyor laying off the homestead was made on December 14, 1877, the ordinary was without authority of law to approve the homestead on December 15, 1877. A homestead thus approved was illegal and void.
(a) Consequently, where the land so set apart is levied upon and sold by a sheriff under a valid execution, the purchaser at the sale thereunder would get a good title.
(b) It follows that after the death of the applicant for a homestead and his wife, and the arrival at age of the minor beneficiaries of the homestead estate, the heirs at law of the former cannot recover the land from the purchaser at sheriff's sale, on the ground that the sale of the homestead property was void.
The court did not err in directing a verdict for the defendant.
Error from Superior Court, Greene County; Joseph E. Pottle, Judge pro hac.
Action by Joseph B. West and others against W. P. McWhorter. Judgment for defendant, and plaintiffs bring error. Affirmed.
The petition of Joseph B. West and others against W. P. McWhorter showed substantially the following facts: Petitioners are the children and heirs at law of John J. West, who died intestate in May, 1899. On January 1, 1874, John J. West owned 115 acres of land in Greene county, Ga., the subject-matter of this suit. On the last-mentioned date he executed a warranty deed to the land to W. P. McWhorter, to secure a debt of $610, which deed remains of record and uncanceled. On December 4, 1877, John J. West made application to the ordinary of Greene county for a homestead in the 115 acres of land, for the benefit of his wife, Elvira B. West, and his minor children, under the Constitution of 1868. On December 14, 1877, the county surveyor of Greene county made his return which was approved on December 15, 1877, by the ordinary of Greene county. On December 9, 1878, John J. West and his wife, Elvira, executed to the defendant their three promissory notes, approximating $250 each, and due November 1, 1879; two of the notes stipulating that they were given in part of balance due on the land debt made in 1874. Judgment was obtained on these notes in May, 1882, and the executions issued thereon were levied on the land in dispute, which was sold thereunder on June 6, 1882; McWhorter being the purchaser for the sum of $400. The sheriff executed and delivered to him an instrument purporting to convey the land to him, which, together with the executions, was recorded in the clerk's office. Mrs. Elvira B. West died intestate in May, 1899, owing no debts. McWhorter had gone into possession of the land some time prior to the death of Mrs. West, and after her death the plaintiffs, as heirs at law of John J West, brought this suit to recover the property and to have the sheriff's deed canceled as a cloud upon their title. McWhorter filed an answer to the petition, denying its material allegations, and specially setting up, by way of cross-bill, that on January 1, 1874, John J. West, being seised of the land in controversy, conveyed the same in fee simple to the defendant, with warranty of title. Thereafter John J. and Elvira West repurchased the same under a bond for title, giving their notes therefor, and while in possession thereof sought to have the land set apart as a homestead. The notes were sued upon to judgment in the county court of Greene county, in 1882, and the land was sold to satisfy the judgment. Thereafter, in December, 1882, the defendant again sold the land to John J. West, and, he failing to make any payments, on December 12, 1889, John J. and Elvira B. West executed to the defendant a release of all interest and title in the land; defendant agreeing that they might occupy so much of the place as they wished for their natural lives,...
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