Hughes v. Purcell , 135 Ga. 174 ( 1910 )

Atkinson, J.

1. Where a husband, being the head of a family consisting of his wife and minor children, abandoned them, and refused to make ' application to have a homestead set apart out of his land and personal property under the provisions of the Civil Code, § 2866, it was competent for the wife to make such application, where she unequivocally alleged that the husband had refused to make the application. Civil Code, § 2842; Hirsch v. Stinson, 112 Ga. 348 (37 S. E. 365).

(a) It would not suffice to allege merely that the husband “neglected or refused.” Davis v. Lumpkin, 106 Ga. 582 (32 S. E. 626).

2. Where, upon appropriate application by the wife, land was laid off by the county surveyor and platted, and the plat was duly returned, filed, and recorded by the ordinary, the family became beneficiaries of the homestead tod entitled to possession of the land. Civil Code, § 2874; Gresham v. Johnson, 70 Ga. 631.

(a) The term “family,” as thus employed, contemplates children born afterwards to the husband and wife as well as those in esse and designated in the homestead proceedings. In this connection see Hilliard v. Hilliard, ante, 168 (68 S. E. 1110).

3. In a suit to recover possession of land from- which the beneficiaries of a homestead exemption had been unlawfully evicted, ordinarily the husband would be a proper party; but if the husband be dead, and the exemption has ceased to exist as to the children in existence at the time the property was set apart, by reason of death, marriage, or attainment of majority, but has not ceased to exist as to'a child born after the' homestead was set apart, the widow for the use of herself and such afterborn child, during its minority, may maintain the action. In this connection see Braswell v. McDaniel, 74 Ga. 319; Pritchett v. Davis, 101 Ga. 236 (28 S. E. 666, 65 Am. St. R. 298).

September 28, 1910.

Equitable petition. Before. Judge Morris. Cherokee superior court.- February 26, 1909.

F. M. Hughes and B. B. Blackburn, for plaintiffs. J. P. Brooke and P. P. DuPre, for defendants.

4. In such an action, where it was alleged that the husband was the owner of the land, seized and possessed' thereof, and that the wife obtained the homestead and took possession thereunder and with the . children remained in possession for more than seven years, this was a sufficient allegation of title and interest to withstand a general demurrer.

5. The action being at law, the fact that 16 years may have intervened between the date of eviction and institution of the suit will not bar the action. McWhorter v. Cheney, 121 Ca. 541 (49 S. E. 603), being an equitable action, the ruling there made does not apply.

6. The allegations relative 'to ouster and possession' by defendants were not of such character as to make it affirmatively appear on the face of the petition that a title-adverse to the beneficiaries of the homestead had been acquired by prescription.

7. The .petition stated a cause of action in the nature of a complaint for land -and for mesne profits. No equitable relief is prayed. The statute of limitations does not apply to suits to recover land; lapse of time being only available in aid of any prescriptive title which the defendant may set up. As against a general demurrer the petition set forth a cause of action.

Judgment reversed.

All the Justices concur, except