Bechtoldt v. Fain , 71 Ga. 495 ( 1884 )

Hall, Justice.

Although the facts would make this seem a hard case, yet the controlling question in it is too well settled by the repeated decisions of this court to enable us, by questioning them, to afford the plaintiff in error the relief she seeks by her bill of exceptions. She is a married woman, and applied for and obtained a homestead, alleging that her husband refused to do so, and failing to state in her petition to whom the property belonged on which she sought to have the homestead laid. It is essential to the validity of her homestead that it should affirmatively appear from her petition that it was claimed out of her husband’s property. 61 Ga., 105; 65 Ib., 347. Had the husband been the applicant, the omission of this statement would not have rendered the homestead invalid, the presumption being in that case that the property was his. 67 Ga., 669. On the trial of the case, it was shown that the property belonged to the wife at the time the homestead was applied for and assigned; but by the Code, §2019, shé is debarred from taking a homestead in her property, unless she is living separate and apart from her husband, and in this instance it appears that she was not. 62 Ga., 352.

Judgment affirmed.