Camp v. Smith

61 Ga. 449

Opinion

Bleckley, Justice.

1. Under the Code, pleadings are amendable in all respects, when there is anything to amend by. The omission to annex an abstract of the plaintiffs title to a declaration of complaint for land is a defect curable by amendment. We can see no reason for holding to the contrary.

2. Granting that the marital rights of the husband attached upon the land, and that it was his property at the time that the homestead was applied for, he was free to alienate his title to his wife at any time before the application was approved by the ordinary. Indeed, as no homestead title becomes vested until all the prescribed steps are taken, the last of which is the ordinary’s approval, it is not easy to see why, at any previous time, the owner could not part with the property by gift or sale to any person whatsoever. But here the conveyance was to the wife, for whose benefit chiefly (there being no minor children) the homestead protection was intended; and, above all, the conveyance was the execution of an ante-nuptial agreement by which this very property, then her own, was to remain hers, and be subject to her disposition by will. We have, then, in favor of her power to devise when her will was executed, the several facts that it was her property before marriage, that it was to remain hers, that it was conveyed to her accordingly, and that the conveyance expressly conceded her right to dispose of it by will. Against all this the husband now has nothing to urge, except that she applied for a homestead, and that the application was approved by the ordinary. If we treat the property as hers, and the homestead carved out of it as hers, the whole proceeding becomes a nullity because she was not the head of a family. There was no provision of law for her to take a homestead in her own property. She did not convey it to her husband.

2. The devisee took the title. Nothing descended to children under section 2024 of the Code.

Judgment affirmed.