Johnson v. Thomason

120 Ga. 531 | Ga. | 1904

Fish, P. J.

(After stating the facts.) As the guardian’s bond) for the breach of which judgment was rendered against P. R. Thomason as surety, was executed prior to 1868, the original homestead set apart to the widow and minor child of Johnson, the principal in such bond, would have been subject to the judgment which Thomason, after paying off the judgment against himself as Johnson’s surety, obtained against the administrator of Johnson for the amount so paid. Dunagan v. Webster, 93 Ga. 540. And the fact that Thomason advised the widow to have the homestead set apart would not have estopped him from enforcing his judgment against the property so set apart. VanDyke v. Kilgo, 54 Ga. 551. It is well settled that property paid for in full with other property previously set apart, in due and proper manner, under the homestead and exemption laws, takes the place of the latter, and is impressed with the homestead character. Broome v. Davis, 87 Ga. 584. And this is true though the conveyance of the new property be to the,wrong person. Johnson v. Redwine, 105 Ga. 449. It does not appear that either of the orders authorizing P. R. Thomason, as receiver, to sell and reinvest, directed to whom the deed in which the reinvestment was to be made should be taken. Thomason, in making the sales and rein-vestments, acted as the mere instrument of the law, and it is apparent from the nature of the proceedings that it was never contemplated by any one that title to either of the tracts of land in which the reinvestments were made should be put in him in any capacity, and the fact that the deeds were erroneously taken, the first to him as receiver and the last to him as trustee and receiver, did not change the character of the lands as homestead property. The deed, in so many words, conveyed the property to him as receiver or trustee, to be held as a homestead for the use of the beneficiaries of the original homestead, and at the expiration of the homestead estate to revert to the estate of Johnson. Thomason was not trustee to manage ,and control the property in which the investments were made. He was only appointed to make the sales and reinvestments. Nor was such property in the hands of the court, to be administered by him as receiver, further than to make the sales and reinvestments. The only duties which he had to perform, under either order of the court, were to sell the homestead property and reinvest the proceeds of the sale in other property for like uses; and as soon as he had discharged these duties, according to the order under which he was acting, he ceased to be receiver. The rule being that land paid for in full with the proceeds of a homestead is homestead property, and stands, as to exemption from sale, on the same footing as the original homestead, though title to the same be not taken to the proper person, we see no reason why, in such a case, it should not stand on the same footing as to subjection. The homestead was subject to Thomason’s judgment, and so was the reversionary interest which belonged to the estate of Johnson. P. R. Thomason, had he sought to enforce his judgment against the land levied on, would not have been estopped. Such enforcement would not have been “ of a contrary tenor ” to any matter' of record in evidence by which he was bound. The mere fact that it appeared from the record of- the court that he acted as the instrument of the court in making the sales and reinvestments was not even inconsistent with his right to enforce his execution against the lands in which the reinvestments were made. Nor would there have been any estoppel by deed; because, in addition to what has been said, such estoppel only arises against the grantor, and the contention here is that Thomason as grantee would have been es-topped. Nor would he have been estopped by matter in pais; because this form of estoppel operates only where the party has done some act, not of record, or reduced to the solemn-form of a deed, or used some language whereby “ he has derived a benefit, or prejudiced another” (Davis v. Collier, 13 Ga. 485); and because no such estoppel can arise where the facts are known to both parties. 11 Am. & Eng. Ene. L. 434. It does not appear that Mrs. Johnson acted upon anything that was done or said by P. R. Thomason, to her own injury or to his benefit. The improvements she placed on the land levied upon were paid for out of the rents and profits she received therefrom, and she seems' to have received the benefits from them. If P. R. Thomason would not have been estopped, then, of course, R. U. Thomason, who owned the judgment and execution, as his heir at law, was not estopped.

The facts in evidence demanded a verdict that the property was subject to the execution, and there was no error in the court so directing. . Judgment affirmed.

All the Justices concur.