Pegram v. Hancock

Little, J. The only question which arises in this case is, [187] whether or not the proceedings instituted to have a homestead set apart on the petition of the claimant in the year 1875, and the subsequent action of the ordinary approving the same, was sufficient in law to create a valid homestead for the benefit of the claimant in the property levied on. Under the law as it stood in the year 1875, the wife, upon the refusal of the husband to do so, might apply for and have set apart a homestead for the benefit of herself and minor children. Code of 1873, §2022. Or, when the husband, being the head of the family, had no property, or having property, if it was not of sufficient value out of which to set apart a homestead, and the wife had separate property, whether real or personal, subject to her debts, she might relinquish, assign, or set over the same to her husband, and then he or she, as the case might be, under the law, might apply and have the realty set apart as a homestead, and the personalty exempted as prescribed by the laws of force. Code of 1873, §2018. Or, “When husband and wife are in the state of separation, and the minor children reside with the wife, or by the law she is entitled to their possession, or the court so awards them to her, she, the wife, is the head of the family in the contemplation of the homestead and exemption laws, and as respects her separate property, may have it set apart without the relinquishment or assignment mentioned in the preceding section.” Code of 1873, §2019. If the land belongs to the husband, the fact of such ownership must appear in the application of the wife, together with the averment that the husband refuses to apply. Mapp v. Long, 62 Ga. 568. In the case of Coffee v. Adams, 65 Ga. 347, it was held: “The record of the application for an exemption under the homestead laws of the State must affirmatively disclose as whose property, whether of the husband or wife, the exemption was claimed. Tor failure in this respect, the exemplification of the proceedings in securing the exemption was properly excluded.” This ruling was approved in the case of Wilder v. Frederick, 67 Ga. 669; and the same principle was ruled in the case of Langford v. Driver, 70 Ga. 588. While the law favors the granting of homesteads for the protection of women and children, the exemptions created are in [188] derogation of the common law, and their benefits are restricted to the terms of the statute; and inasmuch as the application in this case did not show out of whose property the homestead was sought to be set aside, and, before the wife was entitled to have any portion of her real or personal property set aside or exempted, the law in force at the time her application for a homestead was approved required that she should relinquish, assign, or set over such of her property as was sought to be exempted before the application for a homestead should be approved or the exemption granted, which confessedly was not done in this case, the approval of her application by the ordinary did not have the effect of setting apart the property included in her application as a homestead for her benefit, and this failing, the land was subject. Judgment reversed. All the Justices concurring.