Roberts v. Atlanta Cemetery Ass'n
| Decision Date | 15 February 1917 |
| Docket Number | 261. |
| Citation | 91 S.E. 675,146 Ga. 490 |
| Parties | ROBERTS v. ATLANTA CEMETERY ASS'N ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The time to be fixed by the notice prescribed in Civ. Code 1910 §§ 3381-3383, of when the ordinary will act on an application for setting apart a homestead, is not less than 20 nor more than 30 days from the date of the order of the ordinary to the surveyor. If more than 30 days intervene, the homestead is void.
The homestead being invalid, the application for leave to sell it was irrelevant to any issue in the case.
Where a civil engineer who made a survey and plat testifies that the same are correct, the plat is admissible in evidence.
Where it becomes material to locate the line between the land in controversy and that of an abutter, the deed of such abutter to one of the defendants, conveying the abutting land and so describing the line that its physical location is ascertainable, is admissible.
The evidence examined, and held error to direct a verdict for the defendants.
A foreclosure of a mortgage by the statutory method, to which proceeding a junior vendee of the land is not a party, while not conclusive on such vendee, is valid as between the holder of the mortgage and the mortgagor, and a purchaser at the foreclosure sale acquires the legal estate of the mortgagor and, where no illegality in the foreclosure proceeding and the sheriff's sale thereunder is made to appear, the sheriff's deed is superior to the deed executed by the mortgagor after the date of the mortgage.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by Mrs. Carrie Roberts against the Atlanta Cemetery Association and another. Verdict directed for defendants, and plaintiff brings error. Reversed.
E. M. & G. F. Mitchell, of Atlanta, for plaintiff in error.
Smith Hammond & Smith and Mayson & Johnson, all of Atlanta, for defendants in error.
The action was brought by Mrs. Carrie Roberts against the Atlanta Cemetery Association and Mrs. M. Owens. Upon the conclusion of the evidence the court directed a verdict for the defendants.
1. One of the muniments of title relied upon by the plaintiff was a homestead alleged to have been set apart to J. A. Casey, and a sale thereunder by Casey and his wife by virtue of an order of the superior court authorizing the sale of the homestead property. Several objections were urged to the reception of the homestead in evidence, one of which was that the homestead was void because the date of the hearing was more than 30 days after the order of the ordinary setting the case for hearing. The court sustained this objection and excluded the homestead. It is provided by Civil Code 1910, § 3381 et seq., that when an application has been filed, the court shall publish a notice that the applicant has applied for the setting apart and valuation of a homestead, and fix the time when he shall pass upon the same, and that the time fixed in the notice shall not be less than 20 days nor more than 30 days from the date of the order of the ordinary to the surveyor. The record discloses that the application was filed on November 17, 1888, and on that day the ordinary passed an order, directed to the county surveyor, to enter upon the land of the applicant and lay off a homestead for him and his family of so much of the land as would not exceed in value a certain amount, and to make a plat thereof; and on the same day he passed an additional order, setting the hearing for action on the application for Wednesday, December 19, 1888. It thus appears that more than 30 days intervened between the date of the order of the ordinary to the surveyor and the time fixed by the notice as when the ordinary would take action on the application for homestead. As was pointed out in West v. McWhorter, 141 Ga. 590, 81 S.E. 859, the jurisdiction of the setting apart of a homestead is conferred by statute on the ordinary, and he must pursue the mode and order prescribed by law in the discharge of the duty thus imposed; and when he deviates from that order and undertakes to prescribe one to suit his own convenience, he is acting without authority of law, and his action is illegal and void. It was held in that case that where the date for the hearing and approval occur within less than 20 days, the homestead is illegal and void. This rule was adhered to in King v. King, 143 Ga. 385, 85 S.E. 95. Inasmuch as the ordinary was without authority to fix a day for the hearing to occur more than 30 days after the filing of the application and the date of the order to the surveyor to lay off the homestead, he had no jurisdiction on the day so fixed to take any action on the application, and the homestead was void on this account.
2. Inasmuch as the homestead was invalid, the application addressed to the superior court for leave to sell the homestead was irrelevant to any issue in the case.
3. The plaintiff offered in evidence a map made by a civil engineer, explanatory of a survey which he had testified he had made. One of the contentions in the case was that the deed under which the defendants claimed title covered only a part of the land embraced in the muniments of title relied upon by the plaintiff; and that, even if the defendants' title as to that part was superior to the plaintiff's nevertheless she was entitled to recover the rest of the premises in controversy, if she showed title to the same. The civil engineer testified that the plat which he made was correct. The evidential value of the map was not to establish the contentions of the parties respecting their claim of title to the land, but to show their application to the premises. The testimony of the civil engineer was of such a character as to bring the case within the rule that where a surveyor makes a survey and plat and testifies that the same are correct, the plat is admissible in evidence. Wooten v. Solomon, 139 Ga. 433, 77 S.E. 375.
4. The southern boundary of the land in controversy, according to the calls of the deeds of both parties, is the J. D. Collins land. It is important to locate that boundary in order to give effect to the calls of these deeds. The plaintiff offered in evidence a deed from the widow of Collins to one of the defendants, the Atlanta Cemetery Association, from the description of which that line could be physically located. This deed was admissible for such purpose.
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