Pollard v. Blalock

94 S.E. 226, 147 Ga. 406, 1917 Ga. LEXIS 218

Opinions

Gilbert, J.

1. This is an action at law for the recovery of land and mesne profits, instituted by a widow suing as sole beneficiary under an existing homestead set apart under the constitution of 1868 to her husband, since deceased. It was erroneous to dismiss the petition on the ground that the action was maintainable only in a court of equity. Hughes v. Purcell, 135 Ga. 174 (5), 175 (68 S. E. 1111).

2. In passing upon the merits of a petition on the hearing of a demurrer, it' is erroneous for the court to take into consideration facts that are not shown by the! petition.

3. The. plea was sufficient as setting up title by prescription, and there was no error in overruling the demurrer to the plea.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent, and