Kemp v. Kemp, 42 Ga. 523

Kemp v. Kemp

42 Ga. 523 | Ga. | 1871

McCay, J.

The same question is involved in both these cases; that is, whether the homestead clause of the Constitution of 1868, and the Act of 1868, to carry the same into effect, so changes the statute of distributions as to give to the widow and minor children of a deceased person a homestead and exemption in his property, as against the claims of the other heirs-at-law to ther distributive shares.

There is nothing in the Constitution to justify such an inference. The whole tenor of the language is to make a provision, for the wife and children, against the claims of creditors. The language used is: “No Court shall have jurisdiction to enforce any judgment, decree, or execution against the same.” Constitution, Article VII., section 1. Necessarily, this must mean judgments for debts, and not judgments upon questions of title; since, to hold otherwise, would be to make the laying off of a homestead a judgment in rem against the world, as to the title of the property, and binding upon all claimants.

At the death of any one, intestate, the title to his real estate passes to his heirs-at-law, according to the Statute of Distributions. Is there anything in the Homestead Laws which looks to divesting titles — which authorizes any one to take a homestead in land belonging to another, to which another has title?

A creditor, even a judgment creditor, has no title to the property of his debtor. In this State, it is true, a judgment creditor has a lien upon the property; but the title is in the *527debtor. He may sell it, give it away, dispose of it as he pleases — the title is a good one. Our law simply follows the property with the lien, and the discharge of that, at any time, relieves the new title of the burden. If the property be carried out of the State and sold, the lien even does not follow it. Before judgment the creditor has no interest at all. The debtor may sell it, waste it, destroy it, spend it, burden it as he pleases, and the creditor is powerless. But none of these difficulties attach to one who has the title. The property is his. And just here is the point of these cases.

In a solvent estate, the law casts the title, without burden, upon the heirs-at-law, according to the Statute of Distributions. The share of the adult heir is just as truly and emphatically his, as is the share of the minor or the widow theirs; and there is nothing in the Homestead Laws to authorize any divesting of a title. If the homestead be laid off before the death of the intestate, the title, by the statute, rests, and never passes to the heirs. But, at the death, the whole real estate passes to the heirs. If the title passes from the husband during his life, before the homestead is laid off, the right to homestead is gone, because the title is gone. So, at the death, the title having passed to the heirs, the homestead is gone.

If the estate is insolvent, then, as against the claims of the creditors, the law declares the homestead to exist. The heirs generally have, it is true, the formal title, but in their hands it is subject to the debts, and is worthless to them. The assertion of the homestead is no wrong to them, because they really would get nothing. The dispute is, then, between those who have claims upon the estate, creditors, and the wife and minors. For all practical purposes, the title is in the administrator. Indeed, under the Code, he may sue and recover from even the heirs; and the want of title in the property out of which the homestead is taken does not exist: Code, section 2450.

*528As to the question of equity, that is not for the Courts. There is often an equity in giving to the wife and minors a preference over the adult heirs. But if the Legislature see fit to so alter the Statute of Distributions, they can, in a very few words, so declare. There is no necessity for the machinery of a homestead. A simple provision declaring that, in the distribution of intestates’ estates, the wife or minor children shall have such and such an amount or share more than others, is sufficient, and the administrator will so distribute it. It will be found, however, that sometimes such a rule will be very unfair. In one of the cases at bar, such a rule would take the share of the minor children of a deceased son of the intestate.

We are clear that it was not the intent of the Constitution to interfere with the distribution of intestates’ estates among the heirs-at-law, and we reverse the ruling of the Court in the case of Kemp vs. Kemp, and affirm it in the case of Griffin vs. Griffin.