Reese v. Burts

39 Ga. 565

• Court: Supreme Court of Georgia
• Decided: June 15, 1869
• Status: Published

Opinion

McCay, J.

1. We see no reason why the temporary administrator is not, in this State, bound to protect the real as well as the personal estate of the deceased from illegal interference. Land is assets for the payment of debts, in this State, and it is the duty of the administrator to keep it from strangers for that purpose. Code, sec. 2449.

2. The execution does not follow the judgment. By the express terms of the decree, the reversion was not to be sold until the life-estate fell in. This execution fails to make that exception, and, by the well settled rules, it must be quashed. Code, sec. 3581.

3. But we think, nevertheless, that, under the decree, this land is liable to be sold to satisfy the debt of Reese, after the death of the widow. His lien covered it all; and, by any fair construction of the verdict, it means that, after the widow’s death, the dower lands shall be sold. It would be presuming that the jury had deliberately taken from the plaintiff his legal rights, to give the verdict such a construction as is contended foh

Her rights were superior to his, but his were, in conscience and equity, superior to all others. We would not hesitate to strain the language of the verdict a little, to make it speak what it was so clearly the duty of the jury to decree.

But the verdict expressly prohibits the sale of the dower land until the death of the widow, and execution cannot issue to sell that land until it is judicially ascertained that she is. dead. The Clerk is not a j udicial officer, he is only a ministerial officer, and it was not his province to determine that the widow was dead. That was for the Court, on proof made, and this execution was, therefore, issued without authority of law, because it did not follow the judgment. Any change taking place, after judgment, requiring a different execution, must be passed upon by the Court.

4. By our statute, Code, sec. 2494, the liens existing at the death of the testator, are to be paid according to their priority, as they then exist. This was a lien in the lifetime. The judgment is merely the means of enforcing it.

We are, therefore, of opinion that this fi. fa. was improperly issued, but that the plaintiff may take steps to bring the fact that the widow is dead to the notice of the Court, and it will then be the duty of the Court, if nothing appears to the contrary, to direct an execution to issue, according to the facts.'

We also hold, that in the distribution of the proceeds of the sale, the judgment should rank as one having a lien at the death of the intestate.

Judgment affirmed.