
    Bonds et al. vs. Strickland et al.
    
    (Warner, Chief Justice, was providentially prevented from presiding in this case.)
    Where homestead was set apart and sold by consent of the ordinary, and the proceeds used for the family, the purchaser acquires an equity, and if the debt be such as could not sell the homestead in the hands of the family, it ought not to sell it in the hands of those whose money has been used by the family — and in such a case, the whole homestead law being anomalous, the claimant may invoke the title of his vendors to protect his claim and induce a finding of not subject.
    Equity. Claim. Homestead. Title. Yendor aud purchaser. Before Judge Bice. Gwinnett Superior Court. March Term, 1878.
    Beported in the opinion.
    E. E. Juhan, by brief, for plaintiffs in error,
    cited (as to the sale of homestead,) 51 Ga., 518; Code, §§3583, 2216. (As to effect of taking dower,) 19 Ga., 231, 630 ; 10 Ib., 558; Code, §1763; 21 Ga., 161; Code, §1766; 50 Ga., 597; 19 Ib., 5b2.
    W. E. Simmons, for defendants,
    cited 55 Ga., 381; acts 1876, p. 51-53 ; Code, §3583 ; 51 Ga., 570.
   Jackson, Judge.

These were two claim cases turning on the same facts and agreed to be tried together.

The judge, by the agreement, passed upon law and facts as agreed to, and the facts agreed to are substantially as follows :

The land levied on belonged to Culver at his death, in June, 1870. It was set apart as homestead to Mrs. Culver and five children, July 15,1870. On the 21th of June, 1871, the widow, by consent of the ordinary, sold and conveyed the land to Wilson, (three adult children of .Culver joining in this conveyance,) who, on the 7th of March, 1876, sold to Strickland, the claimant. On the 7th of November, 1876, this land was levied upon by thefi.fa. in favor of plaintiffs, which fi. fa. was issued upon a judgment guando which plaintiffs obtained against Schaffer, Culver’s administrator. Culver was county treasurer when he died, giving bond 25th September, 1868, having been elected the April preceding. These plaintiffs were his sureties — they were sued on the bond, Culver’s administrator, Schaffer, not being sued with them, because he had not been administrator twelve months. At March term, 1874, judgment was rendered against them, the sureties. They paid it off and sued and got judgment quando aoeidermt against Schaffer, he having pleadedplene admi/nist/ravit. Theft, fa. issued on this judgment quando is the ft. fa. levied on this land.

The widow is living, and two of the children are still minors. The widow, in 1874, took dower out of other lands of her deceased husband.

On these facts, the court below adjudged the land not subject, and the question is, did the court adjudge right ?

Oases growing out of homestead laws are anomalous, and it is difficult to apply strict legal principles to them. For this reason this case is not easy to be solved. That this widow with her five minor children had a right to homestead out of this land as against these creditors seems to us clear; the bond was given after the constitution of 1868, and if that be the date of the debt against Culver, which is the most favorable view for them, the homestead is superior, under the constitution of 1868, to their claim. It is true, that on behalf of the three adult children, the right of the widow and minors to homestead might be called in question on the principle of the dissenting opinion of Judge Warner in the case of Hodo vs. Johnson & Heath, 40 Ga., 439 ; but the court in its judgment in that case decided that the homestead was good even as to their shares as heirs-at law. Besides, in this case the three adult heirs have conveyed their title to Wilson, and he to Strickland. So that they are out of this question.

The widow sold by consent.of the ordinary, and whilst under the adjudications of this court it may well be questioned whether she could, even with the ordinary’s assent, pass the title, yet the legislature of 1876 has given the purchaser certain rights and remedies. In this case the consideration has been used by the widow and her minor Children, and the purchaser certainly has an 'equity against them-, -and may well claim to be subrogated to their rights. Their homestead could not be sold by these creditqrs if they were in possession, and if they have consumed the fruits of it gathered from Strickland, or Wilson who sold to him, ought not equity to protect it in his hands ? Ordinarily a claimant cannot protect himself, it is true, by showing title in another, and thus showing it out of the defendant in execution ; but if he has paid his- money for the land, and can make an inchoate title good by tacking to his own his vendors’, why should he not do so ?

These homestead cases being anomalous, and the legislature having passed laws which seem to be intended to settle them all as between the original parties and their vendees and the creditors upon equitable principles, we shall not disturb the judgment of the court below finding this property not subject. The judgment is guando. This administrator could not recover this land against the homestead, and these creditors, we think, cannot recover it against the same title; and that title in equity may be invoked by the claimant to aid his own.

The dower was taken by the widow four years after this homestead, out of other lands, and that cannot be used to defeat the equity of purchasers who bought before the dower was applied for.

In view of all the facts, we affirm the judgment.  