Camp v. Smith

• Decision Date: 31 August 1878
• Parties: Camp. v. Smith.
• Court: Georgia Supreme Court

61 Ga. 449

Camp. v. Smith.

Supreme Court of the State of Georgia

(August Term, 1878.)

Ejectment. Amendment. Pleadings. Homestead. Husband and wife. Estates. Before Judge Hall. Henry Superior Court. April Term, 1878.

Mrs. Smith brought complaint for land against Camp. No abstract of title was attached to the declaration. The defendant pleaded the general issue. After the jury was stricken, the plaintiff proposed to amend by adding such abstract. The amendment was allowed, and defendant excepted.

The case was submitted upon the following facts: Mrs. Hand, the mother of plaintiff, was married to defendant in the year 1865, or before that time. She then owned the land in controversy. Plaintiff was her only child, and was then of full age. Defendant had a number of children by a former marriage, all of them of fullage. There were no children by the last marriage. On January 12th, 1870, *Mrs. Camp applied for a homestead in the property, alleging that her husband was the head of a family consisting of himself and herself. On the 31st of the same month the application was approved and recorded. At the time of the marriage a verbal contract was entered into between, defendant and his said wife, by which each was to retain after marriage all the property they severally owned before, with the right to will it at their respective deaths. On January 25th 1870, this ante-nuptial agreement was reduced to writing, which defendant specially empowered his wife to dispose of the premises in dispute by will, conveying to her all the right, title and interest that he had in or to said property. On December 16th, 1871, the executed her will, bequeathing the same to the plaintiff for life, and at her death to the grand-daughter of testatrix. On the 25th of the following March, the testatrix died, and two days thereafter Brown, the executor, proved the will in common form and received letters testamentary. Subsequently Brown died, and Weems was appointed administrator de bonis non, etc. He assented to the legacy. Defendant has been in possession of the premises in dispute since the death of his wife. The fly value of the land has been $50.00.

The court ruled that even if Mrs. Camp could have had a homestead set apart in her separate estate without first conveying the same to her husband, still, at her death, the property went back to her estate and title to the same passed to plaintiff by her will.

To this ruling defendant excepted.

A verdict was returned for the plaintiff. Defendant assigns error upon each of the above grounds of exception.

S. C. McDaniel; Speer & Stewart, for plaintiff in error, cited Code, §§ 2024, 3479;10 Ga., 368; 18 I b., 399. J. J. Floyd; George M. Nolan, for defendant.

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