54 Ga. 529 | Ga. | 1875
In January, 1875, a wife applied for homestead in certain lands, as the property of her husband. Creditors of the husband entered a caveat, on the ground that' neither she nor her husband had any title, but that the title was in them. The evidence made a case of indebtedness of the husband to these
1, 2, 3. It appears from the record that the'court below held this consent insufficient because not verified in the manner prescribed by the act of 1760: Cobb’s Digest, 161. Homesteads were quite unknown to our law at the date of this old statute. The act of 1871, (Code, section 1969,) which provides for conveying the legal title to property as security for a debt, simply requires the wife’s consent; it does not require her to join in the conveyance, nor does it prescribe any form in which her consent is to be given. To resort to this old statute for the form, in the absence of some legislative hint that it was deemed applicable, would be to pay undue homage to antiquity; for the statute was not made for anything so modern and anomalous as the right of homestead. Nor is such a right within its terms,' which embrace only those conveyances in which husband and wife must join in the deed itself. After signing the deed with her husband, she was to make the formal declaration which the statute prescribes. These requisites, including her signature to the deed, were, as the preamble to the statute shows, the substitute adopted in the'colony of Georgia for the old English'assurances by fine and recovery. The rights which they were intended to bar or divest were of a different nature from the
Judgment reversed.