Kirtland v. Davis

Lochrane, Chief Justice. The question in this case arises upon the application of Martha Davis for homestead and exemption of personalty. The case comes by appeal from the judgment of the Ordinary of Eandolph county to the Superior Court. We do not deem it necessary, from the view we entertain of this case, to dispose of the assignments of error seriatim, or follow the order in which they were presented to the Court, but, inasmuch as we reverse the judgment of the Court below, we propose to lay down the general grounds upon which such judgment of reversal is founded. And we commence by saying that, under the Act of 1868, we are of opinion the term homestead does not imply simply the home of the party, nor is it restricted to the dwelling house or residence. The Constitution in providing for homestead and exemption, etc., uses the language: “ shall be entitled to a homestead of realty,” etc., and the Act of 1868 gives legislative construction by providing how such homestead of realty may be set apart, and we, therefore, hold that the property set apart by the Ordinary in this case was within the provisions of the Constitution. Again, we hold that the Act of 1868, section 6, which provides that, either party dissatisfied with the judgment shall have the right to appeal under the same rules, regulations and restrictions as are provided by law in cases of appeal from the Court of Ordinary, intended by such appeal to the Superior Court to bring up the ease de novo before that Court for its adjudication. In the language of this Court in Lynch vs. Pace, 40th Georgia, 173, “ the whole case is brought up by the appeal,” and the jurisdiction of the Court is not limited on such appeal, but embraces the adjudication of all the questions that may be made upon such trial. And, upon the presentation of the case in the Superior Court, we see no error in permitting the proceedings before the Ordinary to be read as a part of the pleadings, em [322] bracing the affidavits of the appraisers attached to the record as a part thereof. But such affidavits are not testimony before the Court and jury on the trial of the appeal, and could be read only as a part of the pleadings, and not as evidence. Again, we hold that the Act of 1869, amendatory of the Act of 1868, in regard to homesteads, applies only to the exemption of personalty, and not to the setting apart of realty, under the law; and, inasmuch as this application embraces personalty, it was applicable and pertinent, and its provisions should have been given in charge to the jury in relation thereto. While we are satisfied that the main question before the jury, in this case, turned upon the evidence touching the homestead of reality in the Court below, it was, nevertheless, proper, as a part of the record, to have given it in charge, not as counsel may have requested, as applicable to the realty, but to the personalty. And we hold the Court erred in holding that the wife, when an applicant for exemption of personalty, is not within the provisions of the Act of 1869; but she takes the place of her husband in such application, and is affected by any frauds or concealments of property committed or perpetrated by him. And this arises out of the relationship, irrespective of any proof connecting her therewith, or charging her with collusion or confederacy with such frauds or concealments of personal property. Again, we hold the Court erred in charging the jury that, in this case, they were obliged to find either for or against the homestead platted. This is a new question, and becomes important in its application to the administration of the Homestead Acts. The Constitution declares the right, and dictates the duty to the General Assembly, to provide by law for its assertion. The Legislature have passed the Act, and have designated the Ordinary as the officer whose duty it shall be to carry it into effect, and provides for an appeal in the manner previously stated. Upon such appeal, the Superior Court takes jurisdiction of the whole case, and this ju [323] risdiction is not limited by the Act. And we are of opinion that the Court, in the exercise of its jurisdiction, may go into any and all the questions that may be made before it, touching the setting apart of such homestead of realty and exemption of personalty. And this jurisdiction includes the power to administer the Act, and to either sustain the judgment .of the Ordinary in its entirety, or to set it aside upon legal grounds; or, in case they find, from the evidence, that the value of the property, at the time it was set apart, exceeds the amount limited by the Constitution, to diminish by their verdict the property so set apart within the constitutional limitation; and, as a power incident to such appeal, to decree a resurvey, if necessary, so that the Act may be legally administered, and the rights arising under it' fully adjudicated by such Court, on such appeal. It was not the intention of the Legislature to enact a law in the administration of which gross frauds may be perpetrated, but simply to protect a reasonable amount of property from levy and sale, to protect the women and children of the country in a home, or means to provide one; and the administration of the law should be with a view to this beneficent intent, closely and carefully guarded, and not bring the Act itself into disrepute by making it a means of fraud upon creditors; and to this effect the appeal to the Superior Court was provided that it might be administered under a supervisory power, in conformity to the law. Judgment reversed.