The Marietta journal. [volume] (Marietta, Ga.) 1866-1909, 1873-05-16
Jltr Marietta sui'rnal'
THE GEORGIA HOMESTEAD ACT

Its Retroactive Feature Killed by the
u. S. Supreme Court,
John Nick. Gum, plaintiff in error,
as. Charles F. Barry. In error
to the Supreme Court OF the state
Of Georgia.
Mr.. Justice Swayne delivered the
opinion Of the court.
This IS writ of error to the Su>
preme Court of the State of deorN
gia. ,ooo
On the 18th of May, 1866, the
plaiutiff in error recovered in the
Superior court Of Randolph county |
judgement against VIM. R. Hart
for the sum Of S402 80, principal,
and SI29 60, interest, up to the date
of the judgment and costa. An exc
cution was issued upon the judg-
ment and placed in the hands OF
the defendant in error as sheriff OF
that county. He was thereby com
manded to make the sums above
mentioned aud further interest upon
the principal from the 18th Of May,
1866, and the costs. The plaintiff
in error requested him to levy upon
a tract of land Of 2723 acres belong
ing to Hart, the defendant in the
judgment. Barry refused lie
assigned as the only reason for his
refusal that the premises had been
set off to Hart under the provisions
of the act passed by tie General
Assembly ofthe State, and approved
October 3, 1869, entitled IAN act
to provide for setting apart home-
stead of reality and personality, and
for the valuation Of said property,
and for the full and complete pro-
lection and security Of the same to
the sole use and benefit Of families,
as required by section first Of article
seventh of the constitution, and for
other purposes"
Gum thereupon petitioned the
Superior Court Of the county for a
writ of mandimus to compel the
Sheriff to make the levy.
The petition set forth that the
land in question was the only prop
erty known to him subject to the
lien of his Judgment, except tract
of twenty eight acres of the value
Of 500, situated in the county of
Stewart, which was also included in
the homestead so set apart: that the
premises in question we're worth the
sum of $1,000 and that they en-
braced much larger number Of
acres than the real estate exempt
from levy and sale by the laws in
force when the judgement was re-
covered and when the debt on
which it was founded was contract
ed.
1t does not appear that these ale
cations we're denied, and we do not
understand that there is any contro
versy upon the subject.
After full hearing the Court
affirmed the validity of the act in
its retrospective aspect, and gave
judgment against the petitioner
The Supreme Court of the State
affirmed this judgment.
The first section of seventh arti-
Gle of the constitution of Georgia of
1868 provides that teach head of
a family, or guardian or trustee of
family of minor children, shall be
entitled to homestead of reality to
the value of $4,000 in specie, and
personal property to the value of
81 900 in specie, to be vaued at the
time they are set apart and no court
or ministerial officer in this State
shall ever have jurisdiction or author
ity to enforce any judgement, decree
or execute against said property 50
set apart, including such improve
ment as may be made thereon from
time to time, except for taxes, money
borrowed or expended in the i'm
provement of the homestead, or for
the purchare money of the same
and for labor done thereon, or mate
rial furnished therefor, or removal
Of encumbrances thereon"
The first section of the act of the
Sd October, 1868, is in the same
terms.
1t may well be doubted whether
both these provisions were not inten-
dei to be wholly prospective in their
effect.
But as we understand the SUI
preme Court of the State has come
to different conclusion, we shall
not consider the question.
The statue in force when the
judgement was rendered declared
that the following property belong
ing to a debtor who was the head
of family should be exempt from
levy and sale, to wit; Fifty
acres of land and five additional
one for each Of his children under
the age Of sixteen years, the land to
include the dwelling house, If the
same and improvements do not ex-
coed two hundred dollars one farm
horse or mule, one cow and calf,
ten head of hogs and fifty dollars
worth of provisions, and five dollars
worth additional for each child; beds
bedding and common bedsteads, |
sufficient for the family one loom
one sninnino wheel. and two pair |