¶1Archibald Sloan died leaving a will, by which he directed his executor to sell the land in dispute, at private or public sale, and divide the proceeds among testator’s children, the lessees of plaintiff. The executor, who was also testamentary guardian, instead of selling the land, had it set apart as a homestead to the children, believing the estate to be insolvent. Afterwards he obtained from the Ordinary the following paper:
“STATE OF GEORGIA — Whitfield County:
I, W. H. Brooker, Ordinary for said county, do hereby approve the transfer of said lot of land, number two hundred and forty, in the thirteenth district and third section, set apart as homestead for A. Sloans’ minor children, when their guardian, Samuel B. Sloan, can transfer it with propriety, and to the benefit of said minors. .
Witness my hand and official signature, this April 14th, 1869. W. H. Brooker, Ordinary.”
¶2On the same day the guardian sold the land at private sale to defendants, and in two weeks afterwards removed from the State. The suit is brought by the minors, through W. C. Martin, as next friend.
¶3In the course of the trial the defendants were permitted, over the objection of plaintiff’s counsel, to prove the existence of judgments against the executor, as such, which it was claimed rested as a cloud over the title to the land, and the risk of which defendants took when they bought. It was also objected by defendants that the minors, having a guardian, who had not been removed, could not sue by next friend. Three questions arise here: 1st. Was the sale of the homestead valid ? 2d. Was the objection to the admission of the judgments against the executor good? 3d. Had the minors the right to sue by next friend ?
¶4*3121. There is no provision made by the homestead laws for the sale of a minor’s homestead. If it can be sold at all, it can only be sold as provided by the Code for the sale of other realty belonging to the minors. It is very doubtful whether such an assent by the Ordinary to the sale of any homestead would be valid. The executor could not sell as such. The setting apart of the land as a homestead divested the estate of the title, and conferred it upon the minors. Hence, the deed of the defendants is worth nothing as against their rights.
¶52. The judgments against the executor were entirely irrelevant to the issue, and should have been rejected.
¶63. Revised Code, section 1812, provides for suits by minors through a next friend where their interest is adverse to that of their guardian, as it certainly is here. Pie is at least responsible to defendants in an action for money had and received, for the amount paid by them for the land.
¶7Judgment reversed.