Sirmans & Brother v. Sirmans

74 Ga. 541, 1885 Ga. LEXIS 355

• Court: Supreme Court of Georgia
• Decided: March 17, 1885
• Status: Published

Opinion

Blandeord, Justice.

Victory O. Sirmans presented her petition to the chancellor, wherein she alleged that she, as head of a family, had had set apart to her, for the benefit of herself and minor children, as an exemption, two hundred head of sheep; that it ivas for the benefit of the beneficiaries to sell said sheep and re-invest the money in other property for their benefit; to this petition exemption papers and record of the same were not annexed. The chancellor granted the prayer of the petitioner and appointed C. M. Sirmans commissioner to sell the property and to re-invest the proceeds for the benefit of said applicant and her minor children. The sheep were sold, and purchased by D. J. Sir-mans & Brother, for two dollars per head, there being two hundred and ten head. The purchaser paid one hundred dollai’s cash, but refused to pay anything more. O. M. Sirmans, the commissioner, brought his action against D. J. Sirmans & Brother for the balance due for the sheep. The defendants pleaded payment and set-off. The jfiaintiff introduced the petition and order appointing C. M. Sir-mans commissioner to sell the sheep, which had been granted by the chancellor. To this the defendants obj ected, because there was not attached to the petition a copy of the record of the exemption and homestead papers granted to Victory 0. Sirmans as head of a family. The court overruled this objection, and this is the first ground of exception.

The plaintiff proved the sale and value of the sheep. The court held that the defendants could not set-off a debt due by the husband or either of the beneficiaries against what they agreed to pay the commissioner, C. M. Sirmans, for the sheep; and this is likewise excepted to; and these rulings form the main grounds of error in the motion for new trial, and all that it is necessary io consider.

1. The chancellor having granted the order appointing a commissioner and authorizing the sale of certain property as exempted and as homestead property, the law presumes that he did his duty, and whether the copy of the homestead or exemption was annexed to the petition or not, that he had sufficient evidence before him to authorize the granting of the order; and when it is shown that plaintiffs in error purchased the sheep under this order, they are in no condition to object to its validity or regularity. So we think the court did right to overrule the objection to the introduction of the petition and order in evidence.

2. And we are equally well satisfied that the ruling of the court was correct as to the set-off pleaded by plaintiffs in error. The property having been directed to be sold by defendant in error as commissioner, and he having sold the same to the plaintiffs in error, they must pay what they agreed to do, so that the fund may be re-invested under the order of the court.

Judgment affirmed.