Blackstone v. Kritzer

120 Ga. 78 | Ga. | 1904

Lamar, J.

The petition for homestead must “ state out of what property the exemption is claimed.” Attached to the petition must be a schedule containing a minute description of all the property belonging to the applicant. But it does not always follow that everything mentioned, therein is to be set aside. The applicant’s assets may exceed in value $1,600. In such a case, of course, all can not be exempt; yet the schedule must contain a list of everything he owns, even though a part may remain subject to levy and sale. If the applicant owns less than $1,600 the rule is not changed. He may desire to retain a part for immediate sale, and may prefer not to include some of his property in the homestead exemption. He is not required to have all set apart as a homestead. Still the statute requires in such case also the same form of schedule. Whether the property is worth more or less than $1,600, and whether all or only a part thereof is to be set aside as a homestead, the schedule must be full and complete. It not only defines what is exempt, but may also be useful to creditors and levying officers in describing what is not exempt. Civil Code, §2828, par. 1, 2. It may be that the approved schedule is prime facie evidence that the property therein described is exempt if less than $1,600; but as to any included therein which was not named in the petition as part of the intended homestead, the presumption would yield. In such cases the petition and schedule must be construed together. Compare Larey v. Baker, 85 Ga. 687; Paschal v. Turner, 116 Ga. 736; McDonald v. Williams, 94 Ga. 515.

Blaekstone owned two mules. He named both animals in the schedule, but the petition only prayed that one should be set apart as exempt. That the mule levied on was omitted from the petition, but described in the schedule, and that the petition and schedule were both approved, did not have the effect of exempting what the petitioner had not asked should be exempt. The judge properly disallowed the claim, and ordered the execution to proceed against the mule which was not referred to in the petition.

Judgment aflrmed.

All the Justices concur.