Lumpkin v. Eason

44 Ga. 339 | Ga. | 1871

Lead Opinion

Warner, Judge.

This was an action of complaint, instituted by Mrs. Fannie E. Lumpkin and her children against the defendant, to recover the possession of a tract of land. The record discloses the following facts: On the 9th day of November, 1868, John T. Lumpkin, the husband and father of the plaintiffs, was adjudged a bankrupt, and on the 28th of November, 1868, an order was granted appointing assignees to take charge of the property of the bankrupt, and dispose of it in accordance with the terms of the Bankrupt Act of Congress. The land was sold by the assignees of the bankrupt, purchased by Crawford, in the manner and under the circumstances set forth in the record, who conveyed it to the defendant. On the 12th of December, 1868, the land in dispute was set apart by the Ordinary of Schley county as a homestead to Mrs. Lumpkin and her children out of the land of her husband, who was then a declared bankrupt, and this is the foundation of her title to the land. Under the provisions of the 14th section of the Bankrupt Act of 1867, all the property of the bankrupt, both real and personal, vested in the assignee from the time of the commencement of the proceedings in the Bankrupt Court, except such property as is specified in the Bankrupt Act, and such other property as was exempted from levy and sale by the laws of this State in the year 1864. The question in the case is, whether the plaintiffs, under the provisions of the Homestead Act of 1868, acquired any title to the land set apart to them for a homestead, as against the title of the assignee of the bankrupt and those claiming under the sale made by such assignee? Although the sale made by the assignee of the land may have been irregular and void, still if the title thereto was vested in the assignee of the bankrupt from the time he was declared a bankrupt, the plaintiffs acquired no title to the land under the Homestead Act, which would have authorized them to recover it from the possession of the defendant. On the trial of the case, the jury, under the charge of the Court, found a verdict for the defendant, to which charge, and refusal to charge as requested, the plaintiffs excepted. On the statement of facts disclosed by the record there was no error in the charge of the Court to the jury, or in the refusal to charge as requested, that the setting apart of the homestead to the plaintiff out of her husband’s property, after he was adjudged a bankrupt, conferred no title upon her to that property, or lien upon it as against the assignee of the bankrupt and those claiming under such assignee. If the sale of the land by the assignee was irregular and void, still, the title thereto would be in the assignee and not in the plaintiff, and she could not recover the land from the possession of the defendant, though he may not have had a good title.

Judgment affirmed.

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Concurrence Opinion

McCay, Judge,

concurring.

The rights of a wife and children to a homestead provision out of the property of the husband is not such a lien upon the same as follows the property into the hands of a third person acquiring title before any application is made to the Ordinary to set the same apart, and if the husband be declared a bankrupt before homestead is set aside the rights of the wife is matter for the adjudication of the Bankrupt Court, and the State Courts have no jurisdiction over the same.