79 Ga. 147 | Ga. | 1887
Lead Opinion
Skellie obtained, in 1882, a .judgment against King, on which an execution issued. King as head of a family took an exemption of personalty in January, 1875. Subsequently to that time, September 30,1875, Mrs. Louisa King, the mother of the defendant in this execution, died, leaving a will. She gave to the defendant a life estate in all her property, both real and personal, with remainder to his children. The property thus bequeathed to the defendant was acquired subsequent to the exemption set apart to the family, and of course did not go into it.
A crop was made on this land in which Mr. King had a life interest, by tenants to whom it was rented, and they used the horses, mules, wagons, etc., together with the provisions and supplies belonging to the exemption, in the production of this crop. King’s share of the crop was
This crop was grown on a portion of the land bequeathed to him some ten years after he came into possession of it under the will of his mother. The plaintiff in execution tendered an equitable issue, in which he set up his right to all the crop made on the farm, except enough to compensate the family for the use of the property belonging to the exemption, and which contributed to its production, returning to it the provisions and supplies furnished for that purpose, with an addition of ten per cent.
On the trial of the case, the claimant joined issue on that plea, and the jury, under the instructions of the court, found thirteen bales of the cotton subject, holding, as we are authorized to infer, that the homestead estate received its compensation for what it contributed from the balance of the cotton, and from the corn, fodder, etc., which it was claimed was returned to it.
Three questions are made by the claimant in his motion for new trial: (1) that in these equitable proceedings the family, the wife and children of the claimant, were necessary parties; (2) that King, as the executor of his mother’s will, had never assented to this bequest to himself, and therefore that the property on which this crop was made was still in the estate of the testatrix; (3) the third exception arises on this charge of the court: “Then see what would be a fair, just and equitable division between King and the homestead estate;. see, if he got 20,40 or 100 bales of cotton, what would be a fair, just and equitable division between him as head of a family, taking into consideration the worth of the mules, the per cent, on the corn, cotton-seed, and everything of that sort, how much would be left to him as an individual.”
We think, under the former decisions of this court, this fact should have been proved, and no more of the crop levied on was subject to the plaintiff’s execution than would have been sufficient to satisfy and pay the rent.
In the case of Wade vs. Weslow & Co., 62 Ga. 562, we held that investments of income go to enlarge the corpus of the estate which produced it. Where a homestead had
It is supposed that another class of cases have some bearing upon the principle preannounced. We adhere to the.principles ruled in the case of Lathrop & Co. vs. McBurney & Hollingsworth et al.,71 Ga. 815, and the case of Oliver & Co. et al. vs. Victor & Co. et. al., 74 Id. 543; but there is no instance where those principles have ever been applied to proceeds made by the employment of homestead property, where the homestead had been taken upon the land of the debtor. There is no instance of any such apportionment as that, and there is quite a line of authorities on the subject. Besides, we believe it is an invariable principle that the debtor cannot be forced to apply his labor to the extinguishment of his creditor’s claim. There is no way of reaching it.
For that reason, we think there was error in the instruction given by the court as to this apportionment, and this ease is sent back, upon that ground alone, for another hearing.
Judgment reversed.
Concurrence Opinion
concurring.
A homestead exemption estate is entitled to all the profits, including those produced by the labor of the head of