52 S.E.2d 841 | Ga. | 1949
The allegations of the petition, seeking cancellation of a sheriff's deed as a cloud upon title, and to enjoin the defendants from attempting to take possession of the property, were insufficient as against general demurrer to set forth a cause of action and, accordingly, the auditor to whom the case was referred properly sustained the general demurrer to the petition, and the trial court did not err in approving such finding of the auditor, and in dismissing the petition.
Separate demurrers were interposed by the defendants to the petition as amended. The defendants also filed separate answers.
By consent of the parties the case was referred to an auditor to pass upon all questions of law and fact. The auditor filed a final report, in which he sustained the defendants' general demurrer, and then proceeded to make certain rulings which were designated as findings of fact and conclusions of law. The petitioner excepted to the findings of the auditor.
By agreement of the parties all exceptions both of law and fact were submitted to the judge of the superior court for adjudication without the intervention of a jury. The trial judge sustained the findings of the auditor in sustaining the defendants' general demurrer, dismissed the petition, and overruled all exceptions both of law and fact in conflict with the above judgment. A decree was duly entered, to which judgment and decree the petitioner assigned error in a direct bill of exceptions. The defendants demurred to the petition as amended, on the ground, among others, that the petitioner neither as executor nor as life tenant had any interest in the three remainder interests which were sold by the sheriff, and that she had no right to complain, as she was not a party to the attachment proceeding.
"All property, both real and personal, being assets to pay debts, no devise or legacy passes the title until the assent of the executor is given to such devise or legacy." Code, § 113-801. "The assent of the executor may be express or may be presumed from his conduct." § 113-802. Where the devisee and the executrix are the same person, and the devisee remains in possession of the real estate for a number of years, during which time she exercises acts of ownership, the assent of the executrix to the devise will be presumed. Belt v. Gay,
The assent of an executrix to a devise to a life-tenant inures to the benefit of the remaindermen, and after such assent the vested interest of the remaindermen is subject to levy and sale, though the life-estate be not terminated. Pound v. Faulkner,
The petitioner alleged that the United States Bankruptcy Court set apart to her as a homestead 310 acres of the 628 acres of land described in the sheriff's deed. However, all that the bankruptcy court could give the petitioner would be a part of what she already had, namely, a part of the life estate which she had in the estate of her husband; and accordingly, if the land set aside as a homestead was a part of the land in which the three-sixths interest in remainder was sold in the attachment proceeding, it did not affect or purport to sell the petitioner's homestead in the life estate. In other words, if the petitioner owned a homestead in the life estate, and the sheriff's deed conveyed the three-sixths remainder interest in the land, such a deed could, under no circumstances, be a cloud upon the title to the homestead in the life estate. Clark v. Woody,
The allegations of a pleading are to be construed most strongly against the pleader, when attacked by demurrer. The demurrer admits only the facts, and not the legal conclusions drawn therefrom by the pleader. Lee v. Atlanta,
Since the rights of the petitioner were not affected by the attachment proceeding, it is unnecessary to decide whether or not that proceeding and the sheriff's deed were void for any of the reasons set forth in the petition.
It follows that the auditor properly sustained the general demurrer to the petition as amended, and the trial court did not err in approving such finding, and in dismissing the petition.
The assignment of error on other findings by the auditor can not be considered, since his action in sustaining the general demurrer to the petition left no pleadings in the case, and all subsequent proceedings were necessarily nugatory. Crawford Ashby v. Carter,
Judgment affirmed. All the Justices concur.