Willis v. Meadors

• Decision Date: 28 February 1880
• Citation: 64 Ga. 721
• Parties: Willis. v. Meadors, executor.
• Court: Georgia Supreme Court

64 Ga. 721

Willis. v. Meadors, executor.

Supreme Court of the State of Georgia

(February Term, 1880.)

Homestead. Deeds. Evidence. Complaint for land. Ejectment. Amendment. New trial. Before Judge SpEER. Newton Superior Court. September Term, 1879.

The abstract of title attached to the declaration in this case was as follows:

"Mortgage from Harry Camp to Adams, Hopkins & Co, dated 10th July, 1848, and registered 7th October, 1848, covering the land sued for.

"Mortgage fi. fa. in favor of Lambeth Hopkins and Francis T. Willis, survivors, etc, of Adams, Hopkins & *Co, v. Harry Camp. Judgment of foreclosure 31st March, 1854, fi. fa. issued 11th April, 1854, levied 20th June, 1854, by Lewis Zachry, deputy sheriff, on the land sued for, sold first Tuesday in August, 1854, to Francis T. Willis."

The defendant, Skinner, who died pending the suit, held undera bond for titles from Thomas Camp. Thomas Camp held under a deed from Harry Camp and his wife. The deed and the bond recited that the property covered thereby had been set apart as a homestead to Harry Camp as the head of a family. Upon this ground they were objected to when offered in evidence. The objection was overruled.

The evidence showed clearly that the title to the property sued for was not in the plaintiff at the time of the commencement of the suit, if it ever had been before; that whatever interest he had ever had therein was transferred by him before suit; that whilst he had no knowledge of the suit having been commenced in his name, and had not authorized it, yet upon being informed thereof he did not object as he understood it was proceeding for the benefit of the party to whom he had transferred whatever title he had.

The jury found for the defendant. The plaintiff moved for a new trial because of the admission of the bond for title and deed as above stated, and upon numerous other grounds not deemed material here.

The point as to the absence of title in the plaintiff seems not to have been made upon the trial and it was insisted that it could not be considered as a ground for refusing a new trial.

The motion was overruled and the plaintiff excepted.

For the remaining facts, see the opinion.

Clark & Pace, for plaintiff in error.

J. J. Floyd, for defendant.

*Crawford, Justice.

In August, 1854, the lands involved in this litigation were sold under a mortgage fi. fa. in favor of Adams, Hopkins & Co, v. Harry Camp, and bought by Willis, the plaintiff in error and a member of the firm, at $800.00; which sum was credited on the fi. fa., and an entry thereof made by the sheriff on his docket. No further action was taken, or had either by the sheriff, the defendant in fi. fa., or the purchaser. The defendant in fi. fa. continued in the uninterrupted possession of the land from the sale in August, 1854, to November 28th, 1870, and then sold it to Thomas Camp, who sold it to John Skinner, December 17th next thereafter.

On the 24th day of February, 1874, this suit was brought in the statutory form to recover the land from Skinner by Willis, the plaintiff in error. The defendant pleaded the general issue and the statute of limitations, and the issues thus made were found by the jury in favor of the defendant, whereupon the plaintiff moved for a new trial, which was refused and he excepted.

The legal questions which arise on this motion and which must control the case are:

1. Whether a deed which in its recitals show that the land conveyed had been set apart as a homestead, should be rejected as evidence conveying title? There are cases in which such a deed should be rejected, as for instance, one showing on its face that the sale of the homestead was made upon a consideration other than those specifically enumerated in the constitution. But the mere recital that the land conveyed had been so set apart, would not ipso facto authorize its rejection. It is provided in that organic law which has been invoked against this construction, that a homestead may be sold at a judicial sale to enforce a judgment, decree or execution against it for purchase money, labor done or material furnished therefor, money borrowed and expended in their improvement, or the removal of incumbrances thereon.

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