Williford v. Denby

Beck, J. (After stating the foregoing facts.) 1. Taking the allegations in the plaintiff’s petition which are not denied in the plea, a case was made which required the judge to direct a verdict in her favor. It sufficiently appears from the petition that the lands to recover which the suit was brought had been set apart as a homestead to the family of plaintiff’s deceased husband. And there is nothing in the defendant’s plea which can be construed into a denial of said allegations. In fact, construing the entire plea together, with the exhibits attached thereto, and construing the allegations most strongly, as we should, against the pleader, it is manifest that the allegations in the declaration, setting up that the land was included in the homestead property duly set apart to the family of the deceased husband, were admitted. It was also admitted that the defendant was in possession of the lands in controversy; and it was admitted also that the land had been sold to the defendant without any order from the proper court. The defendant had only paid to the plaintiff $200 upon the purchase-price of the property; and it was charged in the petition, and nowhere distinctly denied in the plea,' that the rental value of the land during the time that the defendant had the use and occupancy of the same was equal to the‘above sum; and if it was not, the plaintiff -offered, upon accounting, to return to the defendant the balance. But even if she had not made this offer to account and to pay the balance that might be found against her in the event that the sum which had been paid upon the purchase-money to plaintiff was greater than the rental value of the land during the time of the occupancy of the lands by the defendant, the plaintiff could maintain her action, inasmuch as she did not insist upon mesne profits. Having sold the homestead lands and put the purchaser in possession without leave to do so, the head of the family could recover in a proper action. The sale was a mere nullity. Timothy v. Chambers, 85 Ga. 267; Hart v. Evans, 80 Ga. 330. The plaintiff properly brought her equitable action for the re [789] eovery of the lands. McLellan v. Weston, 59 Ga. 883; Woodward v. Bivins, 71 Ga. 589. The defendant set np in one paragraph of his plea that he had ■“expended large sums of money in repairing said place, in having rails split and making fences, clearing up briars, sedges, logs, and trash, and repairing horse lot, yard fence, and chimneys; in fact the place was scarcely inhabitable when defendant got possession, .and now it looks like a new place, with fruit trees trimmed, cross-fences built, and sedge rows cleaned up.” But this portion of the plea was specially demurred to on the ground that it was “too indefinite and general, and not specific enough to be the basis of any charge upon said estate or against the plaintiff,” — -an exception which seems to be well taken. But even when well pleaded, ■such matter could not be set up in bar of the right of recovery of the homestead lands themselves, no question, as we have seen, •of mesne profits being involved. 2. Error is assigned upon the trial court’s refusal to allow an .amendment, tendered by the defendant. But the amendment which was disallowed is neither embodied in the bill of exceptions nor attached thereto as an exhibit; and in such a ease this court will not consider the question raised by the exceptions to the refusal of the amendment. Castellow v. Brown, 119 Ga. 461; Chatman v. Hodnett, ante, 360. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.