45 Ga. 621 | Ga. | 1872
This was an action of ejectment, brought by the plaintiff against the defendants to recover the possession of lot of land number forty, in the tenth district of Hall county. On the trial of the case, the jury found a verdict for the plaintiff. A motion was made for a new trial, on the several grounds specified in the record. The Court granted the new trial, whereupon the plaintiff excepted. The plaintiff claimed a title
Another ground of error assigned is, that the deed of Field and his wife to Burnside for the lot of land in controversy was approved by W. A. Burnside, the Ordinary, who was the brother of James W. Burnside, the grantee in the deed, that he was incompetent to do so on account of his relationship to one of the parties, and that Mrs. Field was not present at the time of such approval by the Ordinary. The 193d section of the Code declares, “that no Judge, or Justices of any Court, no Ordinary, Justice of the Peace, nor presiding officer of any inferior judicature, or commission, can sit in any cause or proceeding, in which he is pecuniarily interested, or related to either party within the fourth degree of consanguinity or affinity.” The property set apart under the Homestead Act is declared to be for the use of the wife or widow and children, during her life or widowhood, and at her death or marriage to be equally divided between the children of her former husband then living : see twelfth section, Act of 1868. The wife and children are the principal beneficiaries under the Homestead Act. The homestead property, set apart as such, cannot be alienated by the husband, but may be sold by him and his wife, jointly, with the approval of the Ordinary. The approval of the Ordinary is required for the protection of the wife and children ; and
Let the judgment of the Court below, granting a new trial, be affirmed.