Pritchett v. Davis

Little, J. 1. It will be seen from the foregoing statement of facts, that the homestead estate upon which petitioners based their claim to the premises in dispute and prayer for injunction was allowed and approved on December 1, 1884, and recorded [241] December 9, 1884; while the contracts of lease and sale from the husband and father of the petitioners, and upon which the defendants relied, were executed, respectively, March 9, 1891, and December 21, 1894. By article 9, section 2,- paragraph 1, of the constitution (Civil Code, § 5913) it is provided, with reference to property set apart for a homestead, -that no court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, execution or decree against the property set apart for such purpose, including such improvements as may be made thereon from time to time, except for taxes, for the purchase-money of the samé, for labor done thereon, for material furnished therefor, or for the removal of incumbrances thereon; and by the same article of the constitution, section 3, paragraph 1 (Civil Code, §5914), it is, among other things, provided that the debtor shall not, after the homestead is set apart, alienate or encumber the property so exempted, but it may be sold by the debtor and his wife, if any, jointly, with the sanction of the judge of the superior court of the county where the debtor resides, or the land is situated, the proceeds to be reinvested upon the same uses.- A similar provision to that last quoted may be found in section 2847 of the Civil Code. In view of these positive provisions of law prohibiting the alienation or encumbrance of property set apart and subsisting as a homestead, except in the manner and for the purposes therein enumerated, we are only concerned to inquire whether the contracts of lease and sale, executed by the head of the family and relied on by the-defendants, amounted to an alienation or encumbrance of the property, or any portion thereof, involved in this controversy. It will be observed that, by the provisions of the contracts of lease and sale, the defendants acquired all right to the entire timber suitable for turpentine purposes, together with the right of way and use of the timber for staves, hoops, still-houses, and were also authorized to cut certain of the timber for sawmill purposes; all of these privileges to continue and subsist through a series of years. It is therefore apparent that, under the privileges granted, the defendants had authority to cut for sawmill purposes and remove every stick of tim [242] ber or tree standing and growing upon this land, of certain given dimensions, or at least so much thereof, as could be cut and removed within three years; they also had power and authority to cut and utilize the timber for staves, hoops, and still-houses during this period of time, there being no limitation as to the character and dimensions of trees to be used for these latter purposes. Hence, under the privileges granted, it was within the power of the defendants to cut and remove from this land every vestige of timber standing and growing thereon, or so much thereof as might suit their convenience and purposes. These broad and extensive privileges and rights certainly amounted to an alienation of all or some portion of the timber growing upon the land embraced within the homestead estate. By section 3045 of the Civil Code realty is defined to include all lands and the buildings thereon and all things permanently attached to either, or any interest therein, or issuing out of or dependent thereon, etc.; and, accordingly, it has been held by this court that trees growing upon land constitute part of the realty. Coody v. Gress Lumber Co., 82 Ga. 793; Balkcom v. Empire Limber Co., 91 Ga. 651, 655; Morgan v. Perkins, 94 Ga. 353. It follows that one to whom growing timber has been conveyed, to be removed within a given time, acquires by reason of such conveyance an interest in the land, subject, however, to be divested if he fails to remove the timber within the time limited by the conveyance. Morgan v. Perkins, 94 Ga. 353, supra. As was said by Justice Simmons in the case of Coody v. Gress Lumber Co., cited above, “A sale-of growing trees is a sale of an interest in land.” These authorities, and the reason upon which they are predicated, demonstrate that, by the terms of the contracts of lease and sale made by the head of the family for whose benefit the homestead was set apart, a part of the realty embraced in the homestead estate was alienated to the defendants, and thus the inhibitions imposed by the constitution and laws of this State were contravened; and therefore these contracts of lease and sale were void and conveyed nothing to the defendants. 2. It was contended by the defendants, that the plaintiffs could not maintain the proceeding instituted, but that Arthur [243] Davis, as head of the family, was the only proper party to do so. The wife and family are the chief beneficiaries contemplated by the homestead and exemption laws. The homestead is set apart for their use and benefit; the real use and possession are in the wife and children. Civil Code, §§2866, 2874. The possession of the husband is for them, and is therefore their possession. Tucker v. Edwards, 71 Ga. 602. As was ruled in the case last cited, where certain homestead property had been tortiously taken from the possession of the head of the family and the wife was allowed to maintain a possessory warrant for its recovery, in passing upon the question as to whether the proceeding should have been instituted by the husband or the wife: "it is purely technical who should bring it.” While it has been frequently ruled by this court that the head of the family could properly maintain proceedings looking to the protection of the homestead estate (Zellers v. Beckman, 64 Ga. 747), it has likewise been ruled that the beneficiaries have such an interest in the use and enjoyment of the property as will entitle them to protect it against an illegal invasion. Eve v. Cross, 76 Ga. 693. Especially were the beneficiaries of this homestead estate entitled to maintain the present action, it appearing that the father and husband had in the first instance declined and refused to apply for the homestead, and that in his stead the wife had applied for and had the same set apart; and the father having subsequently, during the existence of the homestead for their use and benefit, sought to convey away a portion of the property to the use and possession of which they were entitled, in violation of their legal rights, they not only had the right, but indeed were the proper parties to institute this proceeding for the protection of their rights thus sought to be infringed. See Tucker v. Edwards, 71 Ga. 602, supra. 3. In support of their claim to the use and possession of the land involved in this proceeding, and of their prayer for injunction and other relief, the plaintiffs offered to introduce the original homestead papers, including the petition therefor, .affidavit to the same, schedules, and approval and entry of record. The defendants objected to the introduction of these [244] papers, on the ground that the original papers were not the best evidence of the setting apart of the homestead, but insisted that the same should be proved by a certified copy from the records in the office of the clerk of the superior court. This objection, however, was overruled by the court below, and the original papers admitted. The claim set up by the plaintiffs was predicated- upon the existence of the homestead in their favor; and it was necessary for them, in order to maintain the proceeding, to show the setting apart of the homestead. For this purpose, the original papers are the highest and best evidence; they are primary evidence of the fact. Civil Code, §§5211, 5212. This point was directly ruled in the case of Brown v. Driggers, 60 Ga. 114, where it was held, that an exemplification or certified copy of the plat of homestead and schedule of personalty set apart by the ordinary and approved by him, certified by the clerk of the superior court of the county where the same are recorded, is only secondary evidence, under these sections of the code, and such certified copy is not admissible in evidence until the original, which should be in possession of the party claiming the homestead, is accounted for. A similar ruling was made in Larey v. Baker, 85 Ga. 687. The court therefore properly admitted the original homestead papers, and excluded the certified copy from the records of such papers offered by the defendants. 4. It follows from the rulings made above, that the plaintiffs made a case entitling them to the injunction as prayed, and as each of the defendants was a party to the contracts of lease and sale, the court did not err in granting the injunction as against both of them. Judgment affirmed. All the Justices concurring.