Stuckey v. Watkins

112 Ga. 268 | Ga. | 1900

Cobb, J.

In 1869 a homestead was set apart to the head of a f amily under the laws passed in pursuance of the provisions of the constitution of 1868 with reference to homesteads. In 1874 the administrator of the estate of the head of the family obtained an order of the court of ordinary authorizing the sale of the realty which had been set apart as a homestead, and under this order the property was sold. The validity of this order is attacked in the present case, and it is contended that, under the terms of the paragraph of the constitution of 1868 which authorizes the setting apart of property. as a homestead, the order- is absolutely void. That paragraph provides that “no court, or ministerial officer in this State, shall ever have jurisdiction, or authority, to enforce any judgment, decree, or execution against said property so set apart — -including such improvements as may be made thereon from time to time-— except for taxes, money borrowed and expended in the improvement of the homestead, or for the purchase-money of the same, and for labor done thereon, or material furnished therefor, or removal of encumbrances thereon.” Con. 1868, art. VII, par. 1, Code 1873, §5135. Under the very terms of this provision it was lawful to sell the homestead for six specified classes of debts incurred by the head of the family, and in addition to this it was lawful .to sell the homestead for the payment of any debt which was incurred by the head of the family before the constitution of 1868 went into effect. Gunn v. Barry, 15 Wall. 610, reversing Gunn v. Barry, 44 Ga. 351; Jones v. Thomas, 48 Ga. 593; Chambliss v. Jordan, 50 Ga. 81; Grant v. Cosby, 51 Ga. 460; Wofford v. Gaines, 53 Ga. 485. The court of ordinary is a court of general jurisdiction so far as matters relating to the estates of decedents are concerned. Bush v. Lindsey, 24 Ga. 245; Langmade v. Hamilton, 89 Ga. 441; Dunagan v. Stadler, 101 Ga. 474. It has the power-to authorize the sale of property of a decedent for the purpose of paying debts or for distribution. Civil Code, § 4232 (4). When this court renders a judgment it is to be presumed, at least until the contrary is shown, that it had before it all the facts necessary to make the judgment valid and binding. This being true, when this court enters a judgment declaring that certain property of a decedent shall be sold, it is to be presumed that the sale was ordered for some purpose authorized by law. McDade v. Burch, 7 Ga. 559; Davie v. McDaniel, 47 Ga. 195; Barnes v. Underwood, 54 Ga. 87; Davis v. Howard, 56 Ga. 430; Bailey v. Ross, 68 Ga. 735; Roberts v. Martin, 70 Ga. 196; Dixon v. Rogers, 110 Ga. 510. This being true, when an order of sale is passed for the purpose of distribution, there is a presumption that there is no legal obstacle which would prevent the property from being treated as property of the decedent in the hands of the administrator to be administered; and when there is an order authorizing the sale of the property for the purpose of paying debts, there is also a presumption' that there are debts due by the estate of the decedent, and that the property ordered to be sold is in law subject to the payment of these debts. So that when it appears that the property ordered to be sold has been, during the lifetime of the decedent,, set apart to him as a homestead, there is a presumption that the ordinary passed the order authorizing the sale for the reason that it was made to appear to him that there were debts due by the deceased which were superior to the homestead right. The judgment so rendered is a judgment of a court of competent jurisdiction, and is binding upon all parties to the same and their privies until reversed or set aside in the manner prescribed by law. While the terms of the constitution are very broad, they are not broad enough to authorize a holding, that when a court of competent jurisdiction has before it the question as to whether property set apart as a homestead is subject or not subject to a debt claimed in the proceeding to be one which the law says shall be superior to the homestead, and has before it the proper parties to such a controversy, a judgment so rendered will not be binding upon the parties to the case and their privies. See, in this connection, Wegman Piano Co. v. Irvine, 107 Ga. 65.

Judgment reversed.

All the Justices concv,rring, except Lewis, J., absent.