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.
No. 16579. APRIL 13, 1949.
Mrs. S.E. Thornton, individually and as executrix of the estate of W. R. Thornton, her husband, filed in Monroe Superior Court, against H. H. Hardin, individually and as executor of the estate of T. J. Hardin, and L. C. Bittick, sheriff, a petition, which as amended alleged substantially the following: W. R. Thornton departed this life in 1904 after making his last will and testament, which was duly probated. He appointed the petitioner, and his two oldest sons, Cyrus L. and Joseph W. Thornton, executrix and executors of his estate. The testator devised to the petitioner all of his property for and during her natural life, directing that the estate remain intact until her death, at which time it was to be divided between his children. The executrix and executors duly qualified and took charge of the estate and jointly managed the same for several years, but for the past 20 years the petitioner has been in full charge and possession, as the executors have been nonresidents of the State. On April 25, 1933, the defendant, H. H. Hardin, sued out an attachment before a justice of the peace for $210 principal besides interest and costs, against C. L. Thornton, R. O. Thornton, and J. H. Thornton, who were sons of the testator. An entry made upon the attachment stated in part that a named deputy sheriff executed the same by levying the attachment "on the following described property, to wit: Three-sixth undivided remainder interest (each of the above named defendants owning one-sixth undivided interest in remainder)." Then followed a description of land inherited by the three defendants under the will of W. R. Thornton. The description did not comply with the Georgia laws in reference to attachments, and the levy was void because of insufficiency, as the nonresident defendants were not given the
notice prescribed by law. On October 3, 1933, Sheriff L. C. Bittick executed a deed conveying the three-sixths undivided remainder interest of the three defendants in the attachment suit, inherited under their father's will, to the defendant, H. H. Hardin. It was stated in the deed that the life estate ceases upon the death of Mrs. S.E. Thornton (the petitioner), at which time the above named remaindermen and their successors in title will be entitled to possession. The deed executed under the above void levy passed no title and said deed is a cloud upon petitioner's title. The petitioner, as the executrix of the estate of W. R. Thornton, has continued in possession of the lands described in the sheriff's deed for more than 40 years, and she did not, as executrix, assent to Sheriff L. C. Bittick's making the levy on the land, nor did she assent to his making the deed to the defendant, H. H. Hardin. If the defendant ever had any title, it has been forfeited by failure to take possession of the land for the period of time since 1933, and for this reason the deed is barred by the statute of limitation. Furthermore, the United States Bankruptcy Court for the Middle District of Georgia in 1924 set apart to the petitioner as a homestead 310 acres of the 628 acres of land described in the sheriff's deed as her own individual property, and for this reason she is interested in the property individually as well as executrix of the estate. The defendant is interfering with the petitioner's rights wilfully and unlawfully, in the management and enjoyment of the property both as an executrix and individually, by filing an injunction suit against her son, M. F. Thornton, now pending in Monroe Superior Court, thus enjoining her son, who lives with her, from cutting even fire wood off of any of the 1500 acres of land, including her homestead. The aforesaid levy was excessive and void and the deed made from the levy and sale was void, as the fi. fa. was for a less amount than $400, one-half interest in 778 acres having been levied upon, whereas the property at the time of the levy was worth $8000 and could have been subdivided and sold in 100-acre tracts, one of which would have been more than sufficient to have paid off the fi. fa. in full. Copies of the will, the sheriff's deed, and the attachment proceedings were attached as exhibits and made a part of the petition. The petitioner prayed that the sheriff's deed be canceled as a cloud upon her title; that the
defendant be restrained and enjoined from attempting to take possession of the property or changing the status of the record titles; and that process issue.
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, 142 Ga. 366 (3) (82 S.E. 1071); Citizens Bank of Vidalia v. Citizens SouthernBank, 160 Ga. 109 (1a) (127 S.E. 219); Holcombe v.Stauffacher, 201 Ga. 38 (38 S.E.2d 818). Accordingly, where it is alleged in
the petition that the testator devised to the executrix all of his property for and during her natural life, that the United States Bankruptcy Court in 1924 set apart to her a homestead in the life estate, that she as executrix had continued in possession of the lands described in the sheriff's deed for more than 40 years, and that the defendants were interfering with her rights in the management and enjoyment of the property both as an executrix and individually, and the petition does not affirmatively deny that the executrix had assented to the devise of the life estate in her favor, it must be taken that such assent was given.
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,193 Ga. 413 (5) (18 S.E.2d 749).
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, 197 Ga. 683
(30 S.E.2d 181).
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, 197 Ga. 518
(29 S.E.2d 774). While the petition alleged that the defendants had filed an injunction suit against her son, thus enjoining him from cutting even fire wood off of any of the land, the only relief prayed for was cancellation of the sheriff's deed as a cloud upon the petitioner's title, and that the defendants be enjoined from attempting to take possession of the property or changing the status of
the record titles. The petition did not allege that any of the defendants were attempting to take possession of the property or that they were threatening to cut any timber. The instant petition when stripped of its legal conclusions, viz., that the defendants were interfering with the petitioner's rights wilfully and unlawfully, in the management and enjoyment of the property both as an executrix and individually, sets forth no allegations of fact to authorize the grant of any relief for which the petitioner prays.
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, 146 Ga. 526 (3) (91 S.E. 780); Bullard
v. Bullard, 202 Ga. 769 (4) (44 S.E.2d 770); Watkins v.Jacobs Pharmacy Co., 48 Ga. App. 38 (2) (171 S.E. 830).
Judgment affirmed. All the Justices concur.