West v. McWhorter

Hill, J. (After stating the foregoing facts.) In the view we take of this case, the homestead set apart to John J. West, as the head of a family, on December 15, 1877, was void, whether it was applied for and set apart under the constitution of 1868 or that of 1877. The record shows that the application for a homestead was filed on December 4, 1877. The return of the county surveyor was made on December 14, 1877. The homestead was approved by the ordinary on December 15, 1877. By the act of 1876 (Acts 1876, p. 48), which was in force at the time the proceedings for the setting apart of a homestead now under review were had, the Code of 1873, § 2007, was so amended as to require the ordinary to set the hearing on the application at a date not less than twenty [593] nor more than thirty days from the date of the order of the ordinary to the surveyor, directing him to lay off the homestead of the applicant and make a survey of the same. The order to the surveyor in the record does not show the date it was rendered, but it could not have been granted prior to the application itself, which was filed on December 4; and as the homestead was approved on December 15 next thereafter, the hearing must-of necessity have been set less than twenty days from the date the order was granted. In Brady v. Brady, 67 Ga. 368, it was held that where an ordinary had fixed a time and place for hearing an application for a homestead, and on the day set was absent from the county, and no provision for a continuance was made, he could not subsequently, without further notice' or order, approve the application and grant the homestead. In the opinion (p. 377) it was said: “The jurisdiction of the setting apart and assignment of homesteads under the constitution of 1868 is conferred by statute law on the ordinary, and he must pursue the mode and order therein declared in the discharge of the-duty, thus imposed. When he deviates from that order, and undertakes to prescribe one.to suit his own convenience, he is acting without authority of law, 'and his action is illegal and void.” And see, Reid v. Jordan, 56 Ga. 282; Mitchell v. Braswell, 59 Ga. 532; Fussell v. Dennard, 118 Ga. 270 (45 S. E. 247). We hold that the setting of the hearing on the application and the approval of the homestead by the ordinary at a date earlier than he was by law authorized so to do constitutes a defect in the proceedings fatal to his jurisdiction, and that the approval and setting apart of the homestead was void. There being no valid homestead, the land was subject to levy and sale in 1882, and the defendant acquired a good title thereto as purchaser at the sheriff’s sale under-the levy made that year. There is nothing to show that John J. West at any time subsequently acquired title from the' defendant; on the contrary, it appears that the title remained in the latter. It follows that the heirs at law of John J. West had no interest in the land after his death and that of his wife and the arrival at age of his minor children, and the court committed no error in directing a verdict for the defendant. ' Judgment affirmed. All the Justices concur, except Atlcinson, J., absent.