King v. King

143 Ga. 385 | Ga. | 1915

Hill, J.

(After stating the foregoing facts.)

1. The petition alleged that “about seventy-two acres of lot of land No. 22Q in the 7th District and 3d Section of Gordon county, . was duly set apart by the ordinary of said county as a homestead for petitioner and her then minor children.” The defendant filed a special demurrer to the effect that there was no sufficient description of the property involved in the case. The court overruled the demurrer, and the defendant excepted. It is insisted that, considered in connection with the homestead proceedings set out in the record, the description is sufficient. But, as decided in the following division of this opinion, as there is no valid homestead, we fail to see how the record in the homestead proceedings can aid the description of the land in order to make it sufficient. Even if the homestead was valid, there is nothing in the petition for homestead which gives a fuller description of the land than that contained in the plaintiff’s petition. But by referring to the petition for homestead it will be seen that the applicant asked for a homestead to be laid off and set apart “on or out of one hundred and twenty-two acres of land, being a part of lot of land number 220 in the seventh district and 3rd section of said county.” This description is not sufficient. Nor will a resort to the return of the surveyor suffice, for he merely says that he did “lay off and plat for Andrew J. King and family a homestead of 108 acres No B and 11-P, of the value of Seven Hundred Dollars, correct plat of which is hereto attached.” But the record shows no plat from which we can get a fuller or more accurate description than that set out in the plaintiff’s petition, which we hold is an insufficient description. Besides, on special demurrer, if the description of the land as contained in the pleadings is insufficient, resort can not be had to the evidence to splice out the description. The so-called homestead proceedings were in the record, over objection of the defendant, as evidence offered by the plaintiff, and not as a part of the plaintiff’s pleadings. When the defendant asked for a fuller description of the land alleged to be homestead property in the petition, he was entitled to have it; and the court erred in overruling the special demurrer on this ground. Social Benevolent Society v. Holmes, 127 Ga. 586 (56 S. E. 775).

2. On the trial of the case the court admitted in evidence, over objection of the defendant, the homestead proceedings on the application of A. J. King, as the head of a family Consisting of himself, his wife (the plaintiff in the court below), and certain minor children, for a homestead in certain lands belonging to A. J. King. The objection was that the certified transcript of a homestead proceeding of A. J. King, offered by the plaintiff, did not show that a homestead had ever been allowed, approved, or granted by the ordinary, and that, taking as true the plaintiff’s allegation that it was granted on January 5, 1895, the ordinary was without jurisdiction to grant the homestead, the petition for homestead having been filed on December 18, 1894, and the order to the surveyor being dated on the 19th of December, the following day, and that the hearing and order were within twenty days from the date of such order. An inspection of the record fails to disclose any order of the ordinary approving or allowing the homestead as required by law. If the allegation of the petition that it was granted on January 5, 1895, be taken as true, then the case falls within the ruling made in West v. McWhorter, 141 Ga. 590 (81 S. E. 859), where it was held by this court that a homestead granted by an ordinary within twenty days from the date of setting the hearing on the application, and the approval of the homestead by the ordinary, is void. The record in the present case shows that the petition for homestead was filed on December 18, 1894. The order of the ordinary, directing the county surveyor to survey and lay off a homestead and make a plat of the same as provided by law, was dated December 19, 1894. The return of the surveyor was sworn to on January 4, 1895, and shows that the survey and plat were made on January 1, 1895; and this was filed and recorded January 9, 1895, in the office of the clerk of the superior court. The record does not show any order of approval by the ordinary. So in either event, — if there was no approval, or if the approval was within the twenty days from the application or order of the ordinary to the surveyor, as alleged in the petition, — no valid homestead is shown. The burden is on the plaintiff to show that there was a valid homestead, which she has failed to do. Without that she has no standing in court. If the homestead fails, her suit fails; for her whole cause of action is based on the validity of the homestead. The record showing that the certified transcript of the homestead proceedings was not sufficient to create a homestead, the court erred in allowing it in evidence, especially when it was not coupled with any other evidence showing it to be a valid homestead. We hold, therefore, that the court erred in directing a verdict for the plaintiff.

Nor was the defendant estopped to deny the existence of the homestead because on the trial he offered in evidence certified copies of the petition and orders (other than order of approval) in the application of A. J. King and Mrs. Annis King for leave to sell the alleged homestead property, in the superior court of Gordon county, the petition merely alleging that “a homestead on real property and exemption of personalty was duly set apart to the said A. J. King by the ordinary of said county,” etc. Especially is this so where the defendant in his answer expressly avers "that no homestead was ever granted to plaintiff as alleged, and that the paper purporting to be a homestead was never granted as provided by law.”

3. The petition was sufficient to withstand a general demurrer. Vaughn v. Fitzgerald, 112 Ga. 517 (37 S. E. 752); A. & W. P. R. Co. v. A., B. & A. R. Co., 125 Ga. 529, 540 (54 S. E. 736).

Judgment reversed.

All the Justices concur, except Fish, G. J., absent.