Cox v. Cody & Co.

75 Ga. 175

• Court: Supreme Court of Georgia
• Decided: February 9, 1886
• Status: Published

Opinion

Blandford, Justice.

The plaintiff in error, on behalf of herself and her two minor children, as the only heirs at law of Charles Wallace, deceased, brought an action of ejectment to recover a certain tract or parcel of land in Warren county. The defendants in error filed their bill to enjoin this action, upon the ground that the land had been set apart as a homestead to Mrs. Wallace (now Cox), as the head of a family of minor children—there being two minor children of Charles Wallace, deceased, and the said Ann D., his widow—out of the estate of said deceased, and that she, as head of the family, with the approval of the ordinary, in 1871, had conveyed the land by deed to them. On the trial of the case, the complainants introduced and offered to read in evidence .an exemplification from the records of the court of ordinary, showing that ihe land in controversy had been set apart to Mrs. Wallace and two minor children as a twelve months’ support before the grant of the homestead. This was objected to, upon the ground that the order did not recite the names of the administrators upon whom the application was served. It appearing that the administrators of Charles Wallace, deceased, acknowledged service on such application, the court overruled the objection and admitted the evidence, and this is the main ground of error relied on. If the objection had been to the materiality of the evidence, there being no issue made by the pleadings which the evidence could illustrate, then objection would have been good, but the objection to the evidence being upon special grounds, the same was properly overruled by the court.

When the land was set apart to Mrs. Wallace as a twelve months’ support for herself and minor children, she had the right to sell the same, and her conveyance conveyed the title. So when Mrs. Wallace conveyed the land to defendants in error, and specified and set out the same as her homestead, she, at the same time, had the right to sell the same as her twelve months’ support, and all the title to the land passed to her vendees..

Judgment affirmed,