Crawford v. Ward

49 Ga. 40

• Court: Supreme Court of Georgia
• Decided: May 15, 1872
• Status: Published

Opinion

Trippe, Judge.

Sarah E. Ward filed her application to the Ordinary of Randolph county for a homestead. The surveyor returned, as surveyed by him with a plat, three lots of land, by numbers eleven, twelve and thirteen, each containing two hundred two and a half acres. ' George W. Crawford (then in life) as a creditor, filed his objection that the land was of greater value than $2,000 00 in specie. Commissioners were appointed, who reported the land to be worth five dollars per acre. The Ordinary, on this report, allowed two of the lots on which were the improvements, as a homestead, and passed an order accordingly. From this the objecting creditor appealed.

On the trial, evidence was introduced by both parties as to the value of the land, and of the improvements, and of the land as affected by the improvements. The witnesses differed greatly in their estimates of the value, varying from three to eight dollars per acre.

The Court was requested by counsel for objecting creditor to charge the jury, that “it was the duty of the jury to find either for or against the homestead, as allowed by the Ordinary,” which the Court refused, and charged “that they should find according to the evidence a homestead not exceeding $2,000 00 in specie, that they could find the four hundred acres set apart by the Ordinary, or for a less number of acres, if they believed from the evidence that the four hundred acres were worth more than $2,000 00 in specie; that it was the duty of the jury to set apart a homestead of $2,000 00 in specie value out of this land, and they must find the amount of land she was entitled to from the evidence.” The refusal of the Court to charge as requested, and the charge as given, are complained of.

1. The decision in Kirtland et al., vs. Davis, 43 Georgia Deports, we think settles this question. An appeal carries up the case so that it may be heard de novo, and the appellate Court has the powers of the Ordinary, on the trial of the appeal. The jury may find as they were instructed by the Court they could do, and if the evidence was such that they could not define by metes and bounds, or by proper discriptions, the portion of land they might find as a homestead, provided they found less than the Ordinary allowed, they could so frame their verdict as to authorize the Court to have the proper order to issue to the surveyor to survey the land and make and return such a plat as might be required by the terms of the verdict.

2. We do not think that the weight of the evidence was so strongly against the verdict as to authorize a new trial on that ground. The question of the value was distinctly and fully submitted to the jury.

Judgment affirmed.