21 Ga. 161 | Ga. | 1857
By the Court.
delivering the opinion.
We do not pretend in this case, to examine in detail, the numerous points presented by this record. All we shall attempt is, to announce succinctly, the judgment of the Court upon its main facts and features.
Were this a chose in action, which Dr. Royston had failed to collect in the lifetime of his wife, still the right at her death would have survived to him. But it is land; and the title of the widow, as joint tenant with her children, vested in her husband upon marriage; and in right of his wife and as guardian of the children, he took possession and occupied the land until his death.
' It is suggested, that having become guardian of the two minor children of Dr. Calloway, Dr. Royston held the land as trustee for them. But this will not fully explain tlie possession. For while it is true, that as guardian he occupied two-thirds of it for his wards, this gave him no right to the remaining third; he was in, as husband, upon that third: and he having survived his wife, the land was his; and descended at his death to his heirs, who are the complainants in the bill. What would have been the rights, of the wife, had she survived, it is unnecessary to decide;
This case was before this Court in July 1853. 13 Ga. Rep. 425. It came up, upon judgment upon demurrer. The bill alleged that the land, “was only valuable as a cotton plantation; and that to have the same partitioned into three separate and distinct parcels, would vastly diminish its value and render it of little worth to either of the parties in interest; but that if the tract was sold together, it would bring $35,000 or some other large sum,” and the demurrer admitted this statement to be true.
We held that the bill made such a case as is contemplated by the Act of 1837 (Cobb 583-4) and consequently should not be dismissed upon demurrer. The Court in its opinion, however, goes on to say, “'whether upon the hearing, the proof will sustain the allegation is another thing. If upon the trial the complainants should fail' to make it satisfactorily to appear by testimony, to the Court and jury, that all things considered, it is best that the plantation- should be sold in bulk, rather than be divided, she will fail of course to obtain a decree for a sale.”
We are not satisfied that the complainant has made out such ,a case as would authorise a sale. The entire tract of land is too large to invite a vigorous competition. The bidders would necessarily he few, and in all probability, the result would be that combinations would be formed to subdivide the plantation ; and in this way, the interest of the heirs would be sacrificed instead of promoted. Set apart one-third of this land to Cyrus A. Royston and wife, which they insist shall be done, and the remaining two-thirds would certainly be large enough to attract the attention of the most respectable capitalists; and Cyras A. Royston and wife, are
Again, it may be argued, that a sale of the entire premises
As to the injury which would result to the heirs of Dr. Royston by a further subdivision of their third into three parts, that is a matter which cannot affect the present issue. That contingency can be prevented by a sale of that entire third, or by uniting the two-thirds, as hereinbefore suggested. Swain and wife are willing to a sale; and for the reason just given, the testimony of Eubanks Tompkins was improper, for irrelevancy, and should have been rejected.
Mrs. Swain’s answer may have been sufficient j;o bind her, it could affect nobody else.
We are of the opinion, that Mrs. Mary Frances Royston, was not made a party to the bill, nor could she be prejudiced in any way by the proceeding.
It follows from the general view which we have already taken that there was error in the 7th, Sth.and 9th, given by the Court to the jury, as set forth in the bill of exceptions.
Upon the whole, our judgment is, that the cause should be remanded, with permission to the complainants to amend the prayer of the bill, so as to authorize a decree for the division of the land into three equal parts, one to he assign ed to the heirs of George D, Royston, deceased, one to Swain and wife, and the other third to Cyrus A. Royston and wife.
Judgment reversed.