118 Ga. 569 | Ga. | 1903
According to many decisions, there must be a grantor and a grantee named iu the paper in order for it to operate as color of title, though in this State a decree has been held sufficient for that purpose. Wardlaw v. McNeill, 106 Ga. 29. The authorities are in conflict as to whether a homestead is the creation of a new estate: or merely an incumbrance on the fee. If the latter, it could no more be color of title than a mortgage on the same land. In Keener v. Goodson, 89 N. C. 277, it was held that a judgment ■setting apart a homestead is not color of title; for it is in no sense a ■conveyance of land, nor does it profess to pass any title whatever. It in no way changes the title; it creates in the applicant no new estate, and has no other effect than to attach to his existing estate tire quality of exemption from sale under execution. On the other hand there are decisions which seem to intimate that it is in the nature of a new trust estate, the title to which, and the increase from which, during its continuance, belong to the beneficiaries. In this State it has been held to be “ an estate vested in the family.” Heard v. Downer, 47 Ga. 629. Possession, to be the foundation of a prescription, must be in the right of the possessor and not of another (Civil Code, § 3584); and if the order setting apart the homestead be treated as the creation of an estate, and therefore color of title, the question would remain as to tire character of the prescriptive title created by seven years possession thereunder. "Would it
The code provides for dower, homestead, and year’s support. It has, however, been ruled that the widow is not entitled to take all three of these provisions. She is entitled to dower and year’s support (Calhoun v. Calhoun, 58 Ga. 247, 248; Austell v. Swann, 74 Ga. 278, 290), but not entitled to a homestead and year’s support when the aggregate for the two provisions exceeds the amount which may be set apart as a homestead and exemption under the laws of this State. Donaldson v. Anderson, 104 Ga. 673, and cases cited. Whenever she has a year’s support set apart to her out of the land already held as a homestead, the latter becomes extinguished, the lesser estate being merged into the greater. Lowe v. Webb, 85 Ga. 731. See Miller v. Crozier, 105 Ga. 54; Stringfellow v. Stringfellow, 112 Ga. 494 (4). But this case raises the question as to whether' the application for year’s support of itself, ex proprio vigore, destroys the vested estate of the homestead. Generally an election between two rights is manifested by legal proceedings asking for one which is inconsistent with the other. Mosely v. Lyon, 48 Ga. 398; Brunswick Co. v. Dart, 93 Ga. 747. But, however this may ordinarily be, the law makes an exception in favor of widows and minors, and does not hold them to an election to the same extent as others better informed and more able to protect themselves. The election must be with full knowledge
Each count in the petition was paragraphed and numbered consecutively from 1 to 9. The defendant in his answer admitted or denied the allegations in the paragraphs by number, without showing whether the answer related to the paragraphs in the first or second count, and the plaintiff moved at the trial term to strike the plea, and excepts to the judgment of.,the court refusing to sustain his motion. A plaintiff is required to number the paragraphs of his petition consecutively, and the plaintiff here was as much to blame for using duplicate numbers as was the defendant in failing to show to which count his answer referred. Cooper v. Fortner Brewing Co., 112 Ga. 895 (3). If the plaintiff was not satisfied with the answer, he should have demurred at the first term, when the plea was filed, and given the defendant an opportunity to amend; for if for any reason the court had stricken the plea and made an entry of default, the defendant would have had thirty days
Judgment affirmed.