Smith v. King , 50 Ga. 192 ( 1873 )

McCay, Judge.

1. We are of opinion that Mrs. King had an interest in this land. She appears to have had possession since the death of her husband; to have lived on the place, the homestead. At any rate, there was no adverse possession. She is entitled to the possession until her dower is assigned: R. Code, sec. 1758. She is not bound to make her choice between dower and a child’s part until one year after administration: Code, sec. 1754, par. 3; see, also, Act of 1841, Cobb’s Digest, 230. As to her right of dower, we are inclined to the opinion that the Act of 1839 would not bar her, except as against purchasers, or others holding adversely. Certainly not when she is herself in possession. And even this Act of 1839 would not apply if her husband died before its passage: See 7 Georgia, 20. The bill does not show the date of the death, and we, therefore, cannot say whether she would be barred against even an adverse holder. Altogether, therefore, as to the widow, we do not think, as the case stands, that she is barred of her dower, nor even of her right to choose a child’s part. We do not think the injunction ought to stand, so far as it enjoins the application for letters. That question has nothing to do with the title to the land. It cannot be contended that the heirs are all barred of their title by the deed of Mrs. King, and it would be only, in that event, that their claim to the administration could be set aside. We see no reason why any issue arising on that application calls for equitable interference.

2. But we think there is equity in the bill. The complainant, by his deed, has whatever right Mrs. King had to this land, and we are inclined to think he can compel her, under the circumstances, to elect which of her two rights, dower or child’s part, he thinks best for himself. Under the facts, as stated, those of the heirs who connived with Mrs. King and permitted her to sell to him the whole as hers, are estopped from setting up any interest in the land as against the complainant: 16 Georgia, 593; 31 Ibid., 555; 30 Ibid., 722; 13 Ibid., 492; 29 Ibid., 312. The bill also claims that the complainant has bought two shares. It also states that, in good faith, he has built upon the land, and that various lots have been laid off and sold by him, and that these have been improved. It is patent that this makes a very complicated case of rights in this land — one that, by no possibility, can be settled in one suit at law.

3. We think, therefore, the bill ought to be retained as a bill for partition, that the action of ejectment should be enjoined, and the questions between all the parties tried at once. It is to the public interest as well as to the interests of all the parties, that the matter should be settled by one judgment. Each of these purchasers from the complainant has an independent and special interest, and each must be sued alone at law: See E. Code, sec. 3283. The prayer of the bill, it is true, is not very precise in its requests, but there is a general prayer for relief, and we think the bill contains charges justifying its retainer for such relief as, under the law, its facts demand.

Judgment reversed.