Hart v. Evans

• Decision Date: 22 November 1887
• Citation: 80 Ga. 330,5 S.E. 99
• Parties: Hart v. Evans.
• Court: Georgia Supreme Court

5 S.E. 99

(80 Ga. 330)

Hart

v.Evans.

Supreme Court of Georgia.

November 22, 1887.

1. Homestead—Nature or Right—Sale.

Homestead property, set apart to the head of a family, cannot be sold by any one, whether officer or private person, so long as the family continues to exist as one of the families of this state, save under the conditions prescribed in the constitution.

2. Execution—Bar—Lapse op Time.

Creditors are never barred by lapse of time while the law itself hinders them from proceeding.¹

(Syllabus by the Court.)

Error from superior court, Greene county; Lumpkin, Judge.

A homestead of 300 acres was set apart to a family, at what date does not appear, but most probably under the constitution of 1868. Two hundred acres of same were afterwards conveyed, in 1881, by the head of the family and his wife to a third person in fee-simple, but without any leave or order. In 1887 creditor made affidavit disclosing this conveyance, and that minor beneficiaries had all become of age, as in fact they had. Thereupon the 200 acres conveyed, but still in possession of the head of the family and his wife, were levied on as his property, under judgment rendered in 1876. Wife interposed a claim through him as agent. The trial court held the land not subject, either in fee or reversion. Plaintiff brings error.

John C. Hart and H. T. & H. G. Lewis, for plaintiff in error. W. O. Mitchell, for defendant in error.

Bleckley, C. J., (after stating the facts as above.) 1. The constitution of 1808 declares that each head of a family shall be entitled to a homestead of realty to the value of $2,000, in specie, to be valued at the time it is set apart; and no court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, decree, or execution against it, except for taxes, money borrowed and expended in improvement of the homestead, or for the purchase-money of the same, and for labor done thereon or material furnished therefor, or removal of incumbrances thereon; and the general assembly is charged with the enactment of laws for the full and complete protection and security of the same for the sole use and benefit of the family. In this constitution there is no provision whatever for making sale of the homestead, but the constitution of 1877 provides that parties who have taken a homestead under the constitution of 1868 shall have the right to sell the same by order of the judge of the superior court. No order having beenobtained, it follows that if the homestead in the present case was secured under the constitution of 1868, the...