Bush v. Clemons

130 S.E. 914, 161 Ga. 311, 1925 Ga. LEXIS 348

Opinion

Gilbert, J.

The controlling question in the case is whether or not the court properly excluded from the evidence the documentary evidence offered by the defendant to show that the judgment of the court of ordinary setting aside a year’s support for the widow and minor children was afterwards amended in order to include a description of the property and plat. This is true because, as we shall show, the original judgment setting aside this year’s support, unaided by amendment, was void in' so far as the land was concerned; and as the judgment was void in that respect, there was no title to the land in the widow and minor children to the exclusion of the plaintiffs in this case. On the other hand, if the amendment was legal and binding so as to validate the original judgment, then the widow and minor children would be entitled to the entire land set aside, to the exclusion of Mrs. Clemons and Mrs. Thompson, the plaintiffs in the present case.

“It is a well-established rule, that, a judgment setting apart a year’s support being in effect a conveyance to the widow of an interest in her deceased husband’s property, the description of the property must be such as to render it capable of identification; and if the description is so vague and indefinite that the property can not be identified, the title of the estate is not divested by the judgment setting apart a year’s support. McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655); Hawes v. Elam, 131 Ga. 323 (62 S. E. 227).” Hancock v. King, 133 Ga. 734 (66 S. E. 949). The description must be as definite as in a deed. McSwain v. Ricketson, supra. The only description contained in the original judgment setting apart the year’s support touching land was “400 acres land $8000.00.” And there was no plat as required by law. Ga. Laws 1918, p. 122. This description does not identify any particular land, and is insufficient to set aside the land. Lee v. English, 107 Ga. 152 (2) (33 S. E. 39); Pitts v. Whitehead, 121 Ga. 704 (49 S. E. 693); McSwain v. Ricketson, Hawes v. Elam, supra; Beavers v. Wilson, 144 Ga. 231 (86 S. E. 1089); Hutchinson v. Woodward, 145 Ga. 325 (89 S. E. 208); Blackwell v. Partridge, 156 Ga. 119 (118 S. E. 739); Bridges v. Brady, 158 Ga. 886 (3) (124 S. E. 699). There are numerous other decisions to the same effect. Moreover, this seems to have been the accepted opinion of the applicant, set forth in the application to the ordinary, for the amendment of the judgment. As to the admissibility of parol evidence to aid the description, see Blackwell v. Partridge, 156 Ga. 119 (2, 3), and at pp. 129, 130 (supra). It is insisted, however, that where all of the land owned and possessed at the time of the death of the decedent is set aside, such a return is sufficient. It is sufficient to say that in such a case that fact must be shown on the face of the judgment, and not by evidence aliunde. Stringfellow v. Stringfellow, 112 Ga. 494 (2), 496 (37 S. E. 767); McSwain v. Ricketson, Hutchinson v. Woodward, Bridges v. Brady, supra. In this case the fact does not appear on the face of the judgment, and moreover the judgment sought to return “400 acres land,” and the evidence in this case without dispute shows that the decedent at his death owned 413.08 acres. It follows, therefore, that the widow and minor children, under the original judgment, obtained no title to the land sued for in the present case. The description of the land was so vague and indefinite that the judgment setting apart the year’s support, so far as the item of land is concerned, “was absolutely void.” McSwain v. Ricketson, 129 Ga. at p. 180 (supra), and authorities cited.

Did the widow and minor children obtain title to the land in virtue of the year’s support judgment as amended by the judgment of the ordinary, dated April 6, 1925 ? This depends upon whether or not the amendment was valid as against the plaintiffs, Mrs. Clemons and Mrs. Thompson, both of whom were sui juris at the time that the original judgment was rendered setting aside a year’s support. This court has said: “There is no provision, in case the objections are sustained, that the matter be again referred to the same or different appraisers. Where the appraisers file their return with the ordinary, they have discharged their full duty. Their commission becomes functus officio. The statute does not contemplate any further action on their part, or the appointment of new appraisers.” Winn v. Lunsford, 130 Ga. 436, 441 (61 S. E. 9); Casey v. Casey, 151 Ga. 169 (106 S. E. 119). On the other hand it appears that if the commissioners, on petition of the widow, did in fact, under the direction of the ordinary, amend their report and the same was approved and recorded by the ordinary, the same is binding as against the widow and minor children. Seeland v. Denton Realty Co., 148 Ga. 628 (97 S. E. 681); Bridges v. Brady, supra. This ruling is based upon the fact that one who has sought and obtained a judgment in his own behalf is estopped thereafter from repudiating that judgment when conditions have made it to his interest to do so. Thus, in the Seeland case, supra, where the facts were almost identical with the facts of the present case, the minor children for whose benefit the year’s support had been set aside were held to be estopped from denying the validity of the judgment. In this ease those who attack the validity of the judgment are adult heirs of S, K, Bush, who derived no benefit from the judgment, and they stood in the same position as creditors of their father or strangers to the judgment. The facts in the above cases show that both suits were for the recovery of lands to which title was asserted by virtue of a year’s support. In both cases there was a judgment seeking to amend the original judgment. In the Seeland case the judgment for a year’s support was attacked by those minors for whose benefit the judgment for a year’s support was rendered. In the present case it was attacked by adult children whose interests were adverse to the year’s support. The difference is vital to the contention of the plaintiffs in error. Widows and their minor children who invoke and obtain judgments granting them property out of the estates of deceased husbands and fathers can not afterwards repudiate the judgments which they have secured for their own benefit. Warner v. Hill, 153 Ga. 510 (1 a), 513 (112 S. E. 478), et cit. In the Seeland case the court decided that the beneficiaries of the judgment setting apart a year’s support were bound by the judgment allowing an amendment to that judgment; but the ruling was carefully guarded by adding the following: “Under this ruling it is not necessary to enter upon a discussion of the question as to whether or not the amendment to the original return of the appraisers might have been made so as to affect the rights of third parties, though it would seem that this might be done unless the the original return of the appraisers to set aside the year’s support now in controversy was entirely void.” The concluding words of the quotation next above apparently indicate • that a judgment setting aside a year’s support might be so amended as to affect third parties, unless the original return was entirely void. The expression “entirely void” as there used referred to any item of the appraisers’ return. If any item was entirely void it could not be amended. It is otherwise if only incomplete but not void. It is perhaps sufficient to say that that question was not involved in the case. The excerpt above quoted was intended to serve notice that the decision went no further than its facts. The original return in that case was not entirely void, and the -original return in this case was not entirely void. They were both void as to the item of land which the appraisers sought to include. Certainly in the Seeland case it was not intended to intimate that an amendment to a judgment setting aside year’s support could affect third parties who were not allowed their day in court. Adverse parties, to be affected by an amendment- after the original return has been made, must have legal notice. In the present case the plaintiffs, adult children of the deceased, S. K. Bush, could not in any view be bound by the judgment amending the original return, first, because, as shown above, the office of the appraisers was functus officio and they had no legal right to perform any further duty, and the plaintiffs were not among the minors for whose benefit the judgment was obtained and are not estopped from attacking the erroneous judgment; also, because the record shows that the application to ,the ordinary to amend the judgment, together with the order of the ordinary requiring the amendment to be made, the return of the appraisers, and the judgment of the ordinary allowing the same, all took place on the same day, to wit, April 6, 1925. That fact precludes the -possibility that any citation was run, giving notice to interested parties. It could not be treated as a part of the original proceeding and therefore included under the provisions of the original citation, because when the appraisers had made their report their duties had ended; the ordinary had rendered a judgment which exhausted completely his powers in the premises, and he was unauthorized, some two years thereafter, to entertain jurisdiction of a petition to amend and to conclude all adverse interests without notice. It is true, and well settled, “that a judgment of the ordinary setting apart a year’s support is a judgment of a court of general jurisdiction, and the presumption is that everything necessary to authorize the rendition of such judgment was properly done.” Stringfellow v. Stringfellow, supra, and authorities cited. The presumption in this case is entirely rebutted by the record, as shown above, that all of the proceedings to amend the judgment took place on one day. Compare Winn v. Lunsford, supra; Putnal v. Hickman, 148 Ga. 621 (97 S. E. 668). Plaintiff in error cites the case of Hightower v. Hightower, 159 Ga. 769 (127 S. E. 103), headnotes 3 and 4, for the contention that the amendment to the judgment for year’s support should have been admitted as extrinsic evidence in aid of the description of the land in the original judgment. Under its facts that case is not in conflict with the views already expressed. The appraisers in the Hightower case described the land as follows: “210 acres of land on the east side of the Oconee river in the 52 district G. M., Laurens County, Georgia.” It was said in that case: “Unaided, the description of the land in the return of the appraisers' and the order setting it ¿part as a year’s support might be insufficient. . . But the description could be aided by extrinsic evidence.” The description there did not appear to be void, and was so treated in the decision. In Bridges v. Brady, supra, where the judgment setting aside a year’s support was attacked by the minor children for whose benefit the judgment was rendered, it was held that the judgment amending the year’s support as against them was effective. This was, of course, upon the principle that the minors were estopped to attack the judgment which was rendered for their benefit.

Judgment affirmed.

All the Justices ' concur.