Hilliard v. Hilliard

• Decision Date: 26 September 1910
• Parties: HILLIARD et al. v. HILLIARD.
• Court: Georgia Supreme Court

68 S.E. 1110

135 Ga. 168

HILLIARD et al.

v.HILLIARD.

Supreme Court of Georgia.

Sept. 26, 1910.

(Syllabus by the Court.)

1. Homestead (§ 22^*)—Persons Entitled.

A child formally adopted under Civ. Code 1895, § 2497, by a person who was the head of a family, became a beneficiary of an existing homestead estate which had been set apart to the adopter under the Constitution of 1808.

[Ed. Note.—For other cases, see Homestead, Cent. Dig. § 31; Dec. Dig. § 22.*]

2. Homestead (§ 142*)—Persons Entitled.

Where, after a child in the manner just indicated had become a beneficiary of a homestead estate, the head of the family died, and the homestead estate terminated as to the other beneficiaries, but not as to this child, she was entitled to possession of the homestead estate.

[Ed. Note.—For other cases, see Homestead, Dec. Dig. § 142.*]

3. Objections Without Merit.

In view of the entire petition as amended, the objections raised by demurrer to certain paragraphs of the petition were without merit.

4. Demurrer Properly Overruled.

There was no error in overruling the demurrer.

Error from Superior Court, Hart County; D. W. Meadow, Judge.

Action by Lydia Hilliard, by next friend, against A. D. Hilliard and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Lydia Hilliard, a minor, by next friend, brought suit against A. D. Hilliard. J. M. Cannon, Sr., G. W. Grizzle, O. C. Madden, F. A. Weaver, R. C. Madden, and L. T. Welden for recovery of possession of certain land and the value of its rents. The petition, as amended, in substance alleged that the defendants were claiming the land under a purchaser at a sheriff's sale held on the first Tuesday in May, 1900, where the property was sold as the property of W. A. Hilliard: that under the Constitution of 1868 the landhad been set apart as a homestead to William A. Hilliard as the bead of a family, and was so held when, at the March term, 1890, of Hart superior court, the plaintiff, being a child, was formally adopted by W. A. Hilliard and given his name; that thereupon she became a member of the family of W. A. Hilliard and a co-beneficiary of the homestead estate, the other members of the family being his wife and minor son; that William A. Hilliard is dead, and the plaintiff is the only beneficiary of the homestead estate, and as such is entitled to possession of the land and the rents therefrom; that the executions under which the land was sold were based upon debts contracted after the land had been set apart as a homestead, for which the homestead property was not subject, and the sale was void. Paragraphs 3 and 4 were as follows: "(3) That petitioner is a female under the age of 21 years, and as the adopted child of the said Wm. A. Hilliard is a beneficiary of said homestead and entitled to possession of said tract of land and to the rents and profits thereof. (4) That said defendants, or those under whom they claim, have been in possession of said tract of land since the 5th of May, 1900, and receiving the rents and profits thereof, going into possession under some pretended, illegal, and void claim." The defendants demurred to the petition as a whole, on the grounds that it failed to show that the plaintiff was a member of W. A. Hilliard's family at the time the homestead was set apart, and that the petition failed to set forth a cause of action against the defendants, or either of them. They demurred to paragraph 3, on the ground that the facts set forth did not make the plaintiff a beneficiary of the homestead, and to paragraph 4, on the grounds that it did not allege sufficient facts to put the defendants on notice wherein their possession of the land was illegal, and under what void claims they took possession of the land, and that the language used in the pargaraph was a mere conclusion of the pleader. The court overruled the demurrer, and the defendants excepted.

Jas H. Skelton, Jos. N. Worley, and A. G. & Julian McCurry, for plaintiffs in error.

T. G. Dorough and Sam. B. Swilling, for defendant in error.

ATKINSON, J. 1. The homestead was set apart under article 7 of the Constitution of 1868 (Code 1873, § 5135), which, among other things, declared that "each head of a family, or guardian or trustee of a...