Roberts, Cranford & Co. v. Devane

Fish, C. J.

(After stating the facts.)

1. One ground of the motion for a new trial was, that the court erred in admitting, over the objections of the plaintiffs, the proceedings setting apart a portion of lot 411 as a homestead for thé benefit of the family of J. H. Hiers, the objections urged being, that this evidence was irrelevant, as the land levied on was not referred to in such proceedings, and there was no pleading to authorize the introduction of the evidence, and that it was an effort *608 to set up title adverse to that under which claimants held, as plaintiffs had shown that claimants held under a deed from defendant in fi. fa. to them. These objections were not well taken. The theory of the claimants was, that the land levied on was purchased with proceeds from the homestead property, and was-therefore as much exempt from levy and sale under the plaintiffs’ execution as if it had been originally set apart as homestead property. The homestead proceedings were, therefore, relevant. No special pleadings were necessary to authorize their introduction in-evidence, and their introduction did not indicate an effort on the-part of claimants to set up a title adverse to that under which ' they held. They relied upon the deed made to them by the commissioner appointed by the court to sell the property levied on as-homestead property and reinvest the proceeds in other property for the use of the beneficiaries of the homestead. The fact that the claimants took a deed on the same day from the defendant in execution would not necessarily affect whatever title they obtained under the commissioner’s sale and deed.

2. Complaint was made in the motion for a new trial, that the court erred in admitting in evidence, over stated objections of the plaintiffs, certain documents which were referred to in the motion in general terms, and “as being more particularly identified in the brief of evidence.” Under repeated rulings of this court, such an assignment of error presents no question for decision, as the evidence objected to, or at least the substance of it, should have been set out in the motion itself or attached thereto as an exhibit, properly identified.

3. Nor was there any merit in the ground that the court erred in allowing leading questions to be propounded to claimants’ witnesses. Beaudrot v. State, 126 Ga. 579 .

4. Error was assigned on the refusal of the court to give in charge a very lengthy written request for instructions, which seems-to have been intended as a complete charge of legal principles applicable to the various contentions of the parties. The exception was to the refusal of the court to give the entire request. If any portion of such request should not, for any reason, have been given, then the exception was not meritorious. A part of this request was as follows: “The plaintiffs contend also that the claimants recognized the title of the defendant to the land in dispute by *609 accepting a deed from her, and that they are estopped to deny her title thereto. Look to the evidence in this case, then, and ascertain if the claimants accepted a deed from the defendant in fi. fa, If yon should so find, then I charge you gentlemen, that the claimants are estopped from denying the title of the defendant to this land, and 3>ou should find said land subject to plaintiffs’ fi. fa.” This request did not state a proper application of the doctrine of estoppel. The mere fact that the claimants, on the same day that they purchased the land from the commissioner and took a deed from him thereto, also took a deed to the land from, the defendant in execution, certainly would not estop them from relying for title on the commissioner’s deed, and force them to admit that the true title was in the defendant in execution, and the land, therefore, subject to the fi. fa.

5. The court charged the jury, in substance, that if the land levied on was purchased with the proceeds of homestead property, and it was regularly sold under an order properly granted for the sale of the same for the purpose of reinvestment, and if claimants purchased under such sale, then the land should be found not subject to the execution. In view of the issues raised by the evidence on the trial of the ease, this charge was error. Roberts, one of the plaintiffs, testified that J. H. Hiers, who it appears was the head of the family who had a homestead set apart for the benefit of his wife and children, informed him, before credit was extended by his firm to Mrs. Sallie Hiers, wife of J. H. Hiers and defendant in execution, that she owned the land levied on, and that it was upon this representation of J. H. Hiers that a horse and buggy were sold by plaintiffs to Mrs. Heirs and her note taken for ■ the purchase-money of the same by them, J. H. Hiers signing her name to the note, as her agent. He further testified that he never knew that the property levied on was homestead property, or purchased with the proceeds of crops that were homestead property. It appeared that the execution levied upon the land was issued upon a judgment against Mrs. Hiers obtained upon this note. It appeared from the testimony of J. H. Hiers that his wife was in possession of the land at the time the horse and buggy were sold to her and the note given, and he testified that he represented her in making the purchase of the same and giving the note, though he denied telling Roberts that she owned the land. It further ap« *610 peared that the legal title to the land was in Mrs. Hiers at the time the note was given and when, jjlaintiffs’ judgment was rendered against her. In Zimmer v. Dansby, 56 Ga. 79 , it was held, that “if the legal title to land he in the husband and he holds the possession thereof under such title, and the title and possession so remain until a creditor, who gave credit on the faith that the property was the husband’s, without notice of the wife’s equity, ¡reduces his debt to judgment, the lien of such judgment will bind the land, and will be enforced against a secret equity of the wife, resulting from the fact that her money paid for the land.” In Reid v. Holbrook, 123 Ga. 781 , it was held: “Where personalty duly exempted was used in connection with the labor of the applicant and his family in making crops on land purchased by him subsequently, to the exemption, title to which was taken in his own name, and the proceeds of the sale of the crops were applied to the payment of the purchase-money of the land, such land was subject to a debt afterwards contracted by the applicant for provisions for himself and family, the creditor having no notice as to how the land' had been paid for, and having extended credit knowing that the legal title to the land was in the applicant, and upon the belief, in good faith, that he had an absolute and unincumbered title to the same. The record of the exemption was not of itself sufficient to put the creditor on notice of the homestead character of the land.” Under these authorities, if the legal title to the land was in Mrs. Sallie Hiers, the defendant in execution, and she was in possession of the same when the debt was contracted and when the judgment was recovered thereon, and her husband, who had previously had other land exempted as a homestead for her benefit and’ the benefit of their children, represented to one of the plaintiffs that the land levied on was the property of his wife, and the plaintiffs, believing such representation and upon the faith of it, extended credit to the wife, the plaintiffs having no notice or knowledge that the land had been purchased with the proceeds of crops grown on the homestead land, then the land levied on would be subject to the execution, notwithstanding the fact that it was paid for with proceeds of the homestead, and had been regularly sold as homestead property for the purpose of reinvestment, under an order of court, procured after the rendition of the judgment, and claimants had purchased at *611 such sale. The court should have so charged the jury, and left it to them to determine, under the conflicting evidence, whether this was the true theory of the ease or not.

Judgment reversed.

All the Justices concur.