4 Ga. App. 553 | Ga. Ct. App. | 1908
McLamb & Company foreclosed a mortgage of J. A. Lambertson, upon one dark bay mare about eight years old, and one dark bay mare mule about six years old, as the property of the mortgagor. J. A. Lambertson interposed a claim, as head of a family consisting of himself, his wife, and five children, alleging that the property levied upon was not his property, but was held in trust for his said family, because it had been set apart as a homestead by the ordinary of Worth county, under the provisions of the Civil Code, §2827. The mortgagees also filed an affidavit in aid of their foreclosure, asserting that the plaintiffs’ debt fell within one of the classes for which the homestead is bound under the constitution, and amended their mortgage foreclosure by adding an itemized statement of the articles for which the mortgage was given, and by alleging that the articles furnished were for the benefit of the homestead exemption, and in the nature of purchase money. Upon the conclusion of the testimony, the trial judge directed a verdict finding the property not subject to the mortgage. The plaintiffs in error excepted, by direct bill of exceptions, to the admission of the testimony of the witness Lambertson, and of the certified copy of the homestead, and also to the refusal of the court to direct a verdict finding the property subject, as well as to the ruling of the court directing a verdict in favor of the plaintiffs.
We shall first consider the objections to evidence which the court overruled. The plaintiffs first objected to the testimony of Lambertson, to the effect that he then had a family of six children and a wife, all living, and that he applied for a homestead in Worth county. . The objection urged was that the application for homestead was the best evidence. This objection seems to us without merit. The witness was not speaking of the contents of the homestead, but merely stating a preliminary fact, which identified him as' the party referred to in the application, which must speak for itself. The plaintiffs, by their amendment, had admitted that the claimant had taken some kind of homestead, because they alleged in their amendment that the articles they had furnished were furnished for the benefit of the homestead. This
The objections to the certified copy of the homestead were: (a) That the homestead is not recorded upon the minutes of the homestead record in the clerk’s office of the superior court of Berrien county. (&) That the property levied upon is not described in the homestead, (c) That the homestead has never been supplemented by order of the court, as required by law. (d) That there is no proof showing that the property levied upon is the property set apart in the homestead. (e) The description in the homestead and the description in the mortgage show that it is quite different property; and the levy shows the same fact. We think that these objections were property overruled for the following reasons.
Where a homestead is set apart in land, or where the homestead allowed under §2827 of the Civil Code consists partly of land and partly of personal property, the homestead must .be recorded in each of the counties where any of the land is situated (Acts of 1898, pp. 52-53), but it is only when land outside of the applicant’s residence is exempted that the homestead is to be recorded in any county other than that of the applicant’s residence at the time that the homestead is allowed. As there was no property except personal property allowed under the homestead exemption in the present instance, the record in Worth county, which was made within thirty days after the approval of the ordinary, was sufficient.
The objections from 6 to / inclusive are directed to a single point. In the application for homestead the animals levied upon are described as “one dark bay mare, eight years old, value $150,”
It was ruled in Teal v. State, 119 Ga. 104 (45 S. E. 964), Judge Fish delivering the opinion, that “it is a matter of common knowledge and observation that among our people the word 'mare,’ when used without a word of qualification, is understood to mean a female of the horse species. We apprehend that one rarely, if ever, hears the expression 'a mare horse’ employed to describe a female of the species horse, but that the term universally uded, in this State, for this purpose is the single word 'mare.’ On the other hand, when a female of the species mule is intended, the expression used is 'a mare mule,’ and when a female of the species ass is meant, the word 'jenny’ is used.” Eor this reason, the court erred in directing a verdict finding the mare mule not subject to the fi. fa.
Another point raised by the record is the contention of the plaintiffs that the property levied upon is not exempt, because the account comes within the exceptions provided by the constitution, and within one of the classes of debts which may subject a homestead to sale. There is nothing in the evidence upon this point
Judgment reversed.