Groover v. Brown

• Decision Date: 30 September 1882
• Citation: 69 Ga. 60
• Parties: Groover, Stubbs & Co. vs. Brown.
• Court: Georgia Supreme Court

69 Ga. 60

Groover, Stubbs & Co. vs. Brown.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Homestead. Ordinary. Before H. D. D. TWIGGS, Esq., Judge pro hac vice. Washington Superior Court. March Term, 1882.

A fi. fa. in favor of Groover, Stubbs & Company was levied on certain realty in the town of Sandersville as the property of the estate of William G. Brown, deceased. His widow, Maria Brown, interposed a claim, alleging that the property levied on was not the property of the estate, "but is the homestead property of this deponent, which was duly approved and set aside by the ordinary of said county on the 5th day of April, 1872, as a homestead for the benefit of deponent and her minor children."

On the trial, plaintiffs introduced their fi. fa. against the administrator and administratrix of the estate of Brown with the entry of levy thereunder, and showed that Brown died in possession of the property, and that his administratrix had since remained in possession.

Claimant introduced the original homestead papers, and proved by one Whitaker, who was the administrator of the estate of Brown, deceased (Mrs. Brown being administratrix with him), that the homestead property being valued at $2,850.00, Mrs. Brown had paid to himeight hundred and fifty dollars—the excess over the two thousand dollars allowed by law. This was done, the witness thought, in the spring of 1872, immediately after the appraisement; Mrs. Brown did not pay him any money, but, he being indebted to her $1,500 for a year\'s support, deducted the $850.00 from that amount; could not tell when. It also appeared that the youngest child of the claimant had become of age, and it was admitted that the debt on which the fi. fa. was founded was contracted since the adoption of the constitution of 1868.

The petition of Mrs. Brown for the setting apart of a homestead, stated that she was the widow of William G. Brown and "the head of a family consisting of herself and two minor children, " and that she desired a homestead to be set apart for the benefit of "said family" from the property of her deceased husband (the lot now in dispute), stating the value thereof at $2,850.00,

Following the petition appears a return of the county surveyor with a plat of the property, and a statement that it was worth more than $2,000. Appraisers were appointed, who assessed the property at $2,850.00, and the application and return were approved by the ordinary. When this record was offered in evidence, counsel for plaintiffs in fi. fa. objected to its admission, because no order to the county surveyor to lay off the homestead appeared, and no notice as required by Code, §§2006, 2007; because, the property being worth more than $2,000 in specie, a sale thereof should have been made under Code, §2021; and because the minors, not the widow, were the real parties in interest, and were not claiming. (The judge certified that "claimant showed by the public gazette, in which the clerk of the Superior Court did his advertising, that the said clerk gave the legal notice required by law to creditors and others, as required in §2015 Code of Georgia.")

The jury found the property not subject. Plaintiffs moved for a new trial on the following among other grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court erred in admitting the original homestead papers in evidence.

(3.) Because the court refused to charge to the effect that the homestead estate expired upon the last child's becoming of full age; but charged to the contrary.

(4.) Because the court admitted the testimony of Whitaker as to when the $850.00 was paid by Mrs. Brown, plaintiffs in fi. fa. objecting to this evidence on the ground that the administrator's returns furnished the highest evidence of the fact.

(5.) Because of newly discovered evidence, consisting of returns of Whitaker, administrator, tending to show that the $850.00 was not paid by Mrs. Brown within sixty days from the valuation of the property.

The motion was overruled and plaintiffs excepted.

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