Peterson v. Calhoun

Beck, J.

1. Where one as the head of a family consisting of his wife and certain named minor children filed, on November 15, 1879, an application “to have laid off and set apart to be exempt from levy and sale as a homestead . . on or out of one tract of land . . containing four hundred acres known as the homestead whereon petitioner lives, a portion or the whole of said real estate, not to exceed the value of two thousand dollars in specie,” and where in said application petitioner also prayed for the setting apart of certain personal property “not to exceed one thousand dollars in specie,” attaching to the application as an exhibit a schedule of certain personal property and a list of his creditors, but not accompanying the application with a schedule containing a “description of all of his real and personal property,” which petition was filed in the office of the ordinary on the date last above referred to; and where the county surveyor who laid off the homestead made a plat thereof, showing that it contained 525 acres, and, in an affidavit accompanying the plat, deposed merely that “the above [platl represents the homestead of Malcolm D. Peterson [the applicant] surveyed on the 28th day of November, 1879, and that the same is not worth two thousand dollars specie,” which affidavit and return of the surveyor was made the first day of December, 1879; and on the date last stated there was endorsed upon the schedule of personal property the following: “Passed upon and' approved Dec. 1st, 1878 [1879?]. Phil. McRae, O. M. C.,” and upon the plat of the realty the following: “Plat of the homestead of M. D. Peterson. Passed upon and approved Dec. 1st, 1879, by Phil. McRae, Ody. M. C.,” which papers and the endorsements thereon were duly recorded in the office of the clerk 'of the superior court: Held, that the court did not err, in the trial of a claim case, in excluding the homestead papers above set forth, together with the orders and returns thereon, when they were offered as the basis of the claim filed; as they did not show a valid homestead and exemption of the property claimed as exempt. Civil Code, §§ 2828, 2834, 2837.

September 21, 1910.

Claim. Before Judge Martin. Montgomery superior court. August 14, 1909.

Cited by counsel:

99 Ga. 301; 101 Ga. 474; 105 Ga. 185; 106 Ga. 180; 109 Ga. 296; 117 Ga. 940; 118 Ga. 270; 123 Ga. 344, 477; 128 Ga. 117; 129 Ga. 716; Civil Code, §§ 2828-2837, 5371, 5373, 5912.

A. G. Saffold and W. M. Lewis, for plairitiff in error. M. B. Calhoun and Graham & Graham, contra.

2. Upon the exclusion of the homfestead record, a verdict for the plaintiff in execution necessarily followed, as is conceded by counsel for both parties. ■ Judgment affirmed.

All the Justices concur.