Calhoun v. Don

• Decision Date: 31 January 1871
• Citation: 42 Ga. 405
• Parties: JOSEPH CALHOUN, plaintiff in error. v. H. N. McLEN DON, defendant in error.
• Court: Georgia Supreme Court

42 Ga. 405

JOSEPH CALHOUN, plaintiff in error. v. H. N. McLEN DON, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Homestead. Constitutional Law. Before Judge Bigby. Coweta Superior Court. September Term, 1870.

Calhoun, a bachelor, with no family but hired servants, applied for a homestead, as the head of a family. McLendon, a creditor, objected, and the Court ruled that Calhoun was not the head of a family. That is assigned as error.

Smith & Turner, for plaintiff in error. Servants constitute family: 1 Bouv. Die, Family; Webster's Dictionary, Family; Am. L. Times, 267; Act of 1868, sec. 7; Act of 1870.

Wright & Douglass, by J. B. S. Davis, for defendant.

LOCHRANE, C. J.

1. The simple question raised by this record is whether a bachelor, without any persons dependent upon him, is entitled to a homestead, under the Constitution and laws of this *State, is the head of a family. The applicant petitioned the Ordinary, under the Act of 1868, setting out that he was the head of a family, consisting of servants, etc. The defendant in error objected to the application, and the Ordinary sustained the objection. He then appealed to the Superior Court, and the testimony was submitted, by consent, to Judge Bigby, who presided. The proof showed that Calhoun had never been married; that he had certain servants, which he claimed constituted him the head of a family. The Judge held he was not the head of a family, and this is the error assigned.

This Court has held that a single man, under the Constitution, having no persons dependent on him for a support or maintenance, in the meaning of the Constitution, was not the head of a family, and the servants proven to be in the employ of Calhoun, in this case, does not change the rule. If this case can be maintained, it must be by applying to it the provisions of the Act of 1870, section 7, whereby it is declared: "That any single person, male or female, or married person in a state of separation, who, at the time of the adoption of the present State Constitution, or before, lived habitually as housekeeper to himself or herself, on his or her own land, is hereby declared to be the head of a family." The argument in this case invokes our decision upon this question, as it would be unnecessary to dismiss this application and present another, if the law applies, and we can remand it with instructions governing it.

2. A difficulty, however, arises in the construction of the Act of 1870, not seemingly contemplated by the counsel who invokes it application. This Court, in 40 Georgia Reports, 173, gave judicial interpretation to the constitutional provisions regarding homestead, and decided what constitutes a head of a family, under the same. The Constitution declares: "Each head of a family or guardian or trustee of a family of minor children shall be entitled to a homestead, " etc. "And it shall be the duty of *the General Assembly, as early as practicable, to provide by law for the setting apart and valuation of said property, and to enact laws for the full and complete protection and security of the same to the sole use and benefit of said families as aforesaid."

The...