55 Ga. 182 | Ga. | 1875
The single question made in the record in this case is, can a man’s own individual property be set apart as homestead and exemption from his debts without his consent? We think that it cannot be done under the constitution and laws of this state, and our reasons for so holding are sufficiently set out in the syllabus furnished the reporter for publication. We merely remark here that under the old exemption laws, enacted in 1841, a question somewhat analogous (o that at bar came before this court, and it was held that the legislature had no constitutional power to take from a man any portion of his property without his consent; and that to take it from the payment of his debts is to take it from him: Davenport et al. vs. Alston, 14 Georgia, 274. Our constitution of 1868 does not enlarge the scope of legislative power in this particular, so as to authorize the legislature to take away a man’s property without his consent; on the contrary, the system of homestead and exemption therein authorized is voluntary, not compulsory. Each head of a family shall be entitled to the homestead and exemption ; or the guardian or trustee of minor children shall be entitled to such homestead and exemption — evidently supposing their assent thereto, either express or implied. The assent of the father will be implied if he do not object, though he may refuse to act himself, and his wife act for the family; but if he object by plea, as in this case, his objection must prevail against the application. There is a distinction — clear, we think — between his refusal to act himself and his objecting to his wife’s acting for
Judgment reversed.
