Roberts v. Cook

68 Ga. 324

• Court: Supreme Court of Georgia
• Decided: February 15, 1882
• Status: Published

Opinion

Jackson, Chief Justice.

The sheriff was ruled to show cause why he did not put a purchaser at his sale in possession of a tract of land sold by him. The cause shown was that the property had been set apart to the defendant in execution as the head of his family, consisting of a wife and minor children, and that application for the homestead was made and pending during the sale, and notice thereof was given publicly by the sheriff at the time of the sale, and the purchaser bought subject to the right of homestead. The answer was traversed by the purchaser, the head of the family was made a party to the rule, and the question of law and fact was submitted to the presiding judge without a jury, to determine the validity of the homestead, which was set apart a few weeks after the sheriff’s sale. The judgment of the court is that the homestead is valid, and that the rule be discharged. To this judgment exception is taken and error thereon is assigned.

1. The attorney signed the petition for homestead, but the applicant made a written affidavit of the facts therein alleged, and this is one reason insisted on to show the invalidity of the homestead. We think that the court ruled correctly that the fact that the attorney signed it did not render the proceeding void, especially as the applicant made oath of the truth of the petition.

2. Nor is it material that the wife’s age was not set out in the application. True the act of December 16th, 1878, does require that the ages of the family be set out, but the only material part of the family as to age is the children, not the wife. See act of 1878-9, p. 99.

It is true that the act of 1876 did require the age of the wife eo nomine — supplement to Code, §342 ; but that is not expressly required in the act of 1878, but only the general words “of the family,” and this strengthens our conviction that for no conceivable reason is the wife’s age important — certainly not so much as to vitiate the entire proceeding. The wife’s homestead right is not dependent on age at the time set apart, nor as regards the duration of the homestead estate. The children’s age might be important in both respects.

3. The petition does state substantially for -whose benefit the applicant claims homestead, inasmuch as he shows that he claims it as the head of the family, and gives their names, and states one to be his wife and the others his children.

4. It does appear that this purchaser had notice of the application for homestead when he bid off the land, and bought it subject to the notice, and that the plaintiff in execution was returned by the applicant to the ordinary, with his post-office, etc., in compliance with section 343 of supplement to Code, and the presumption is that the ordinary did his duty and mailed the notice. These notices bind this purchaser.

5. Whilst the fact that the surveyor’s return was apparently made on the day of the grant of the homestead, and might have suspended the case for time to look into it, if objected to, it did not render it void, the statute not prescribing such a harsh effect. Creditors should have objected, and only those notified and who could have objected being bound by the judgment, and this purchaser and the plaintiff in execution having the notice required by law, and not objecting, we think are concluded, especially as this purchaser bought subject to homestead, and therefore bought only what the homestead did not take. This last fact alone is enough to rule the case as the judge below did, even if there are irregularities about the proceedings.

Judgment affirmed.