Dismuke v. Eady

• Decision Date: 13 February 1888
• Parties: Dismuke v. Eady et al.
• Court: Georgia Supreme Court

5 S.E. 494

(80 Ga. 289)

Dismuke

v.Eady et al.

Supreme Court of Georgia.

February 13, 1888.

Homestead—Head of Family—Minor Children—Subsequent Marriage.

Where land was set apart as a homestead to defendant in execution, as head of a family of minor children, and he afterwards marries before the children come of age, the homestead continues in favor of the wife, and the land is not subject to execution for his debt, although such debt is secured by deed to part of the land, executed by defendant and his wife.

Error from superior court, Harris county; Smith, Judge.

C. J. Thornton and S. L. Stanford, for plaintiff in error. J. M. Mobley, Willis & Persons, and B. L. Harris, for defendants in error.

Blandford, J. An execution in favor of Eady & Co. against Dismuke was levied on certain land as the property of Dismuke. Dismuke, as the head of a family, interposed a claim to the same as homestead property. The property levied on was found subject. Dismuke moved for a new trial, which was refused, whereupon he excepted. It appears from the record that, in 1870, Dismuke, as the head of a family of minor children, applied to the ordinary of Harris county to have set apart to him a homestead in the land levied upon in this case, upon which land they were then residing. From the papers themselves, it appears that the ordinary had jurisdiction, and that all the necessary allegations were made. When this homestead was set apart, Dismuke was unmarried; but after the granting of the homestead, and before the children had come of age, he intermarried with Cornelia O. Dismuke. Afterwards he and his wife executed to Eady & Co. a deed to a part of the land embraced in the homestead, to secure Eady & Co. for a debt which he owed them. This deed was approved by the ordinary of Harris county. The judge in the court below seemed to attach no importance to this homestead, taken out in 1870; and Dismuke himself doubtless thought that it had terminated by the coming of age of the children, for in 1886 he applied for another homestead. The court below held that the deed conveyed the title, and that the land was subject. In this we think the court erred. We think that the homestead of 1870 was a good and valid homestead; and that, homestead not having expired before Dismuke's marriage to his present wife, she, by virtue of her marriage, became a beneficiary, and the family continued, and there was therefore no expiration of the homestead. The homestead continued, and was in full force...