Grant v. Sosebee

Gilbert, J.,

dissenting. On the date of the execution of the security deed the grantor was an heir at law of her husband, and had an interest in the land. The security deed, therefore, was effective to grant, as such security, her entire interest in the land. She was not, therefore, conveying a bare possibility. It was a present vested interest. “When a year’s support is set apart to a widow, it becomes hers absolutely and unconditionally, and she can sell or dispose of it just as any other person might dispose of his property.” Lowe v. Webb, 85 Ga. 733; Stringfellow v. Stringfellow, 112 Ga. 494, 497. Cases cited in the majority opinion deal with different facts. In each of'the cases there were minor children. No case is cited, dealing with the same state of facts, contrary to the cases just cited and decided at an earlier date, which would make it controlling. Applying the above principle, there being no minor children, the widow took absolute title to the land set apart as a year’s support. Immediately upon the judgment setting apart the land as a year’s support it inured to the benefit of the widow’s gran*665tee named in the security deed executed by her. Moreover, under the Civil Code (1910), § 5157, third persons not a party to the suit are entitled to file claims to property levied upon under an execution.' “The defendant in execution is not a party to the statutory claim case.” Brooks v. Winkles, 139 Ga. 732 (3) (78 S. E. 129); Keith v. Hughey, 138 Ga. 769 (3) (76 S. E. 91). Both of these are unanimous decisions. The case of Vittur v. McClure Ten-Cent Co., 164 Ga. 878 (139 S. E. 799), is a later case and not unanimous. The dissent appears to be in accord with the older cases. In this case the party claiming was a defendant, and is now the defendant in fi. fa., and a special lien on the property claimed was awarded in favor of the plaintiff in fi. fa. For this reason also the court properly directed a verdict against the claimant. Mr. Justice Hines concurs in this dissent.