This case arose on a money rule to distribute a fund in court. The contestants were Simpson, the defendant in error, various judgment creditors, and the defendant in execution and his wife, who claimed part of the fund under homestead set apart to them, plaintiffs in error.
1. In respect to the homestead claim of defendant in execution, it is enough to say that the homestead is set apart subject to the purchase money rights now in the hands of Simpson. Therefore, he can claim nothing against Simpson. Of course the exception of this purchase money included interest as well as principal, and embraced the entire claim of the defendant in error.
2. The wife applied for supplemental homestead out of the same property, the defendant himself having secured it only for $1,050.00. She only applies for homestead out of his property in his stead ; and when she does apply for it in that character, she is estopped by his admission, made in judicio, and certainly could get no more money exempted than could he, if he himself had applied. It would be queer, if, when he would not apply, because *799bound by his admissions not to do so, or because too honest to do so, or for any other reason satisfactory to himself, she became entitled to apply for and get, not only what he could have gotten, but more. If such were the law, the husband and father would always decline to apply, and substitute his wife as his agent, the agent getting and recovering more than the principal could possibly recover. Strange law, strange construction of the law!
The conclusion must be, that as respects these homesteads, Simpson must recover as much money as his claim calls for, or rather as his judgment entitles him to, if a valid judgment.
3. Is that judgment void because founded on a verdict of a jury? The action of Simpson against the defendant, Palmer, is equitable. The remedy, it is true, which he sought is, in form, at law ; but the re'ief is purely equitable. The judgment is not, in strictness, a judgment at law, but in equity. It gives a specific lien on certain specific property, and is so moulded as to give this specific final decree condemning this property to pay the debt, if enough, and if not sufficient, then to operate as a general judgment. The pleader evidently proceeded under §3082 of the Code, which enacts that “ no suitor, however, is compelled to appear on the equity side of the court; but he may institute his proceedings for an equitable cause of action upon the common law side of the court at his option, and the court may allow the jury to find a verdict, and a judgment be rendered thereon, so moulded and framed to give equitable relief in the case, as verdicts and decrees are rendered and framed in equitable proceeding. ”
It was not the intention of the framers of the constitution to annul this statute ; yet it would be annulled if juries were excluded. The proceeding is to be as in equity. The language is, “as verdicts.and decrees are rendered and framed in equity proceeding.” So the mode of procedure is as in equity, so far as verdicts and decrees are concerned. In equi" ty, a verdict would he rendered, and it would be constitu*800tional, because it has been decided not to be within the provision of the constitution requiring the judge to render judgment without a jury on an unconditional contract in writing. 58 Ga., 457. This being a suit at law upon an equitable right to have it enforced as in equity, to have the verdict and judgment as in equity, to be moulded and framed to suit the equitable relief asked, as in equity, we think that it should stand on the same platform as equity cases, and that the judgment or decree is not void because a verdict was rendered.
Let it be noted that the decree here, or the judgment, is that of the judge. It is signed and entered by the court itself. It is not a judgment entered on a verdict by counsel, as in 55 Ga., 475, and following cases. The court here did pass on the case and enter the decree.
At all events, it is substantially an equitable proceeding, and should be ranked with such proceedings, as not embraced within the constitutional provision as to civil cases triable without a jury.
Therefore, this judgment or decree fixes the lien of Simpson upon all this property, so far as defendant in ft. fa. and those in privity with him are concerned. It binds the whole land, and excludes their homestead from operating upon any part of it.
4. It is insisted, however, that the fund in court does not represent all the land, but two-thirds, because Simpson is a vendor and has not pursued his remedy as to one-third (Code, 3Ó54), and no part of this fund represents that third because not sold. It is true that he did buy the note of John Palmer on his brother, the defendant in execution, and took the note with this endorsement thereon: “ I hereby endorse, transfer and assign for value, the within note, and also my interest and rights to secure the same, contained in a bond for titles given by me to George Palmer, and executed to secure the payment of this note. ’’ The bond is a bond for titles to George Palmer when he pays off the note.
*801But it must be borne in mind that Simpson is not the vendor, and could not pursue the statutory remedy under Code, §3654, because he could not make the deed. True, if the vendor to him had made, or would make it, he might pursue that remedy. 56 Ga., 165. But is he bound to go to him? Can he not go at once into equity? He did so, and thus subjected all the land. I.t was sold under his .execution, and another execution, Franklin’s, which also was founded on a .contract which waived homestead. So that the fund represented all the land. The land .was sold under Franklin’s fi.fa., which covered all, and under Simpson’s, which even in the view of counsel for plaintiff in error covered, if the court had jurisdiction to render judgment on a verdict, one-third ; for surely his lien is good for that. No notice under 3586 of the Code was necessary in this case; for Simpson knew all about it and thought all was sold, and so did Franklin. So that the fund is in the place of all the land. All the land was sold, and the question is, who is entitled to the fund?
5. Unquestionably, under the will of Miss Pettus, all the land was charged with the share due to John Palmer; that share was represented by .the note sold to Simpson, and under the will, Simpson’s debt is a charge on all the land, and so the decree was rendered. But it is argued that the th.ree brothers changed their -rights under the will, and made a contract between themselves, and thereby the two brothers .sold-out their shares to .one-third of the land each, to George, the defendant in execution,- and he took their bond for titles to the land ; and -thus -they relinquished the charge on all the land which they had under the will to secure .their interest, and-took in lieu of it one third of the value of -the land, secured only by a statutory vendor’s lien, with bond for titles, for that third. Reading and construing all theydi.d in the light of all the facts, we do not think that such was the contract. The defendant certainly did not so think; for he applied for homestead out of all the land, and said in his petition that *802all was subject to Simpson’s claim. Simpson, who bought from John, did not so construe what was done; for he sued for and got a decree subjecting all of the land. The superior court which passed upon the suit of Simpson, and adjudicated his claim against defendant, did not sounder-stand it; for it decreed that Simpson had alien on all. The agreement does not show any division of the land, but only an estimate from the appraisement of the sum due each, and as by the will the land was charged, all of it, with what was due each of the two, by George, the dedefendant, he gave his notes therefor, and in order to secure himself he took their bond for titles to be made when he paid them. That bond was really no additional security to the brothers, to Stephen or to John, or to John’s vendee, Simpson. The land, the whole property, was their security for the bequest which their aunt left them. It was the purchase money for the entire property, which George was to pay Stephen and John before he got title to it or any of i'c. True, he was to receive two thousand dolíais, first of all, the first charge upon it all, then he was to pay each of them one-third of the value of what remained; then, and not till then, the entire property by the will was vested in him, and he got title thereto free from all charges and encumbrances. So that the scheme, or arrangement, or contract between the brothers, was but in furtherance of the will, made to carry out its true intent and spirit. This arrangement has to be gathered piece-meal. It nowhere appears as an entirety, all in one place, so as to be read and construed at one glance ; but we gather the fragments together, and from them we make out the contract or arrangement as best we may; for unquestionably there was an arrangement among the brothers made to suit George. Probably the carriage and horses, furniture, etc., the personalty, swallowed up his two thousand dollars, or in some way that was allowed him. Then the wood lot was sold and divided. Then these two notes were given on ten per cent, time to suit him. He - paid that to *803Stephen, but was unable to pay John. He wanted his money which his aunt left him, and sold his claim to Simpson, transferring the note and his bond to make titles to his third interest, also to Simpson as security additional to it, as was. doubtless thought, but by no means in ex-tinguishment of the original lien. Nothing is said about doing away with the will. No scintilla of testimony is offered to that effect. Had it'been in existence, it would have been produced. It was not produced. In the absence of it, it ought not to be presumed ; for it would have parted with a lien on all the property for one on a third of it. We construe this arrangement, as we collect it from these scattered pieces, not as a novation (a strange thing, by the way, to graft on a will), a contract in annihilation of the will, an agreement to set it aside, but as an arrangement to carry it out to suit the several positions and wishes of the three legatees of this estate. The defendant in execution simply gave, in addition to the remedy already in the hands of his brothers, a recognition of their title to one-third undivided interest in the property, by accepting from them a bond for titles thereto, while he at the same time secured for himself perfect title, free of incumbrances to all the land whenever he paid them. This carried out the will. He was to have the title when he paid them, by the will. He was to have the title when he paid them, by this arrangement. In both cases, he had first to pay them. The will indicated no time or mode. ' The agreement gave time by providing for ten per cent, interest until paid, and was the machinery used to carry into effect the will.
Thus we come to the conclusion, that the judgment of the court below, in awarding the money to Simpson in accordance with his decree to collect it out of this land, is right — right as against the defendant and his privies in estate, because they are concluded by it and recognized it, or the claim on which it is founded, as superior to homestead, in that it was purchase money; and right as against the judgment creditors contesting with him, because the *804decree, fastening his lien on the land in a higher place than the homestead, could take the money, while their’s were inferior to the homestead and inferior to the decree. 63 Ga., 296; 64 Ib., 365.
Judgment affirmed.