McLendon v. Stokes

76 Ga. 685

• Court: Supreme Court of Georgia
• Decided: April 27, 1886
• Status: Published

Opinion

Blandeord, Justice.

This case arises upon exceptions filed to an auditor’s report.

The court below sustained the report of the auditor, and overruled the exception of the plaintiff in error thereto.

The principal ground of exception upon which error is assigned is that the auditor rejected the record of the homestead of Martin McLendon as the head of a family, which contained the surveyor’s plat of the lands assigned and se<¡ apart as a homestead. The plat shows lot No. 34, 6th district, Terrell, 202-J- acres; lot No. 33, 6th district, Terrell, 128 acres, and lot No. 33, 2d district. In the surveyor’s description in his affidavit, they are described as being in the 3d and 2d districts of Lee. The land sued for is described the same way. The deed from Martin McLendon and his wife to Stokes describes the land as being in the 3d and 2d districts of Lee, and Stokes testifies that the land is in Terrell county, that county having been made from Lee in great part. So we think the land set apart as a homestead, and embraced in the record of homestead, is the same land in controversy. The application for homestead is in compliance with the act of 1868, and we think the auditor erred in not admitting the homestead record in evidence, and that the court erred in not sustaining the exception to the report on this ground, and setting aside the report, as the same is almost entirely based on this erroneous ruling of the auditor. As what we have said will control the case in its present aspect, it is unnecessary to notice the other assignment of error in this case.

Judgment reversed.