Cain v. Farmer , 74 Ga. 38 ( 1885 )

Jackson, Chief Justice.

A decree that Farmer, administrator de bonis non of Hannah, recover of Owens twenty-four hundred and odd dollars, purchase money for a tract of land bought by Owens at administrator’s sale, and subjecting the land to the payment, with directions that part of the fund be applied to plaintiffs in error as counsel, etc., was rendered in 1870. Owens delivered up the land to the administrator, but immediately, as next friend of the minor children of Plannah, obtained for them a homestead on the land, which pre-. eluded the administrator from selling it and paying plaintiffs in error, as ruled at the May term, 1871. When the minor children became of age, and the homestead expired in 1882, at the next term — May term, 1883 — plaintiffs in error moved a rule that the administrator proceed to sell the land and pay them their portion of the decree of 1870. .This was resisted by Owens, on the ground, among others, tbat the decree was dormant, and the court below so held, and plaintiffs in error assign for error this ruling.

1. The decree is not within the dormant'judgment act. It is directory to the administrator to make this money out of this land. IJe was prevented from so doing by the homestead, and the discharge of the rule against him in 1871, on that ground, is an adjudication that he could not make the money while the homestead was in existence. When that homestead estate terminated in 1882, it was his duty to carry out this directory decree; and failing so to do, it was the right of the plaintiffs in error to bring this rule against him, and it was the duty of the court i o direct him to carry out the decree. That this sort of decree in equity is not within the dormant judgment act, see 62 Ga., 725; 33 Id., 148.

2. These plaintiffs in error were parties to the equitable proceedings which resulted in the decree. They were of counsel, auditor, etc., and thus entitled to a decree for what the jury allowed them as fees, no appeal or exception to verdict or decree having been made at the time authorized by law.

Judgment reversed.