GA Code § 44-13-10 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 13 - Exemptions From Levy and Sale|Article 1 - Constitutional Exemptions|Part 1 - In General|§ 44-13-10. Survey of Exempted Real Property; Affidavit of Surveyor; Return to Probate Court; Objection to Survey; Failure of Surveyor to Comply as Contempt

  The surveyor to whom the applicant delivers the order pursuant to subsection (d) of Code Section 44-13-4 shall lay off the exempted real property on or out of the land claimed by the applicant and make a plat of the same and shall make an affidavit that the exempted real property is correctly platted and laid off and setting out its value. He shall return the affidavit to the judge of the probate court at least five days before the day appointed in the order for passing upon the application.   It shall be a valid ground of objection to the propriety of any survey that it has been so made as to injure unjustly or needlessly the value of any land left unexempted by a disregard of the shape and location of the entire tract.   Should any county surveyor fail to comply with his duty as prescribed by this Code section, he shall be punished for a contempt of court by the judge of the probate court.     (Ga. L. 1868, p. 27, § 4; Code 1873, § 2008; Ga. L. 1878-79, p. 99, § 3; Code 1882, §§ 2008, 2010a; Civil Code 1895, §§ 2834, 2837; Civil Code 1910, §§ 3384, 3387; Code 1933, §§ 51-401, 51-404; Code 1981, §44-13-11; Code 1981, §44-13-10, as redesignated by Ga. L. 1983, p. 1170, § 2.)   Cross references.   - Authority of county surveyor to establish fee for making plat of homestead, affidavit, and return, § 36-7-9.   Editor's notes.   - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-11 as this Code section. The 1983 Act also redesignated former Code Section 44-13-10, relating to time fixed by notice for hearing, as present Code Section 44-13-9.   JUDICIAL DECISIONS   Sufficiency of affidavit.    - The surveyor's affidavit that the plat "is a correct plat" means, in substance, that the land is correctly platted and laid off, and is a sufficient affidavit under O.C.G.A. § 44-13-10. Timothy v. Chambers, 85 Ga. 267, 11 S.E. 598, 21 Am. St. R. 163 (1890).   Presumption that affidavit made.    - When it is shown that no affidavit of the surveyor was attached, the law will presume nevertheless that the proper affidavit was made. Dunagan v. Stadler, 101 Ga. 474, 29 S.E. 440 (1897).   Supplying affidavit by amendment.    - The omission of the surveyor to make affidavit to the correctness of the plat and the value of the premises may be supplied by amendment. Burns v. Chandler, 61 Ga. 385 (1878).   Clerical error in affidavit.    - A mere clerical error in the surveyor's affidavit will not invalidate the homestead papers. Baldwin Fertilizer Co. v. Merritt, 101 Ga. 387, 29 S.E. 18 (1897).   Homestead granted before return made.    - Where a bill was brought to recover certain property as being a homestead, and the proceedings exhibited thereto showed that the ordinary (now probate judge) had set apart the lands as a homestead before the surveyor had made the return and before the surveyor had sworn to the same, the bill was properly dismissed on demurrer (now motion to dismiss). Falls v. Crawford, 76 Ga. 35 (1885).   Return on day of hearing.    - That the return of the surveyor on an application for homestead appeared to be on the day set for the hearing would have been good ground for allowing time to investigate the return, but did not render the proceeding void. Roberts v. Cook, 68 Ga. 324 (1882).   Purchaser having knowledge of homestead.    - A defendant having purchased, with the approval of the ordinary (now probate judge) and knowledge of the homestead title which defendant bought, will not be heard to attack the homestead papers for want of regularity in the petition or plat, or in regard to the surveyor who acted in laying off and returning the homestead. Brown v. Driggers, 62 Ga. 354 (1879).   Fixing valuation.    - It is not incumbent on the applicant for a homestead to fix the valuation of the real estate sought to be set apart. This duty devolves upon the surveyor, the surveyor's valuation being subject to review by appraisers. Wood & Bro. v. Collins, 111 Ga. 32, 36 S.E. 423 (1900).   Proper order presumed.    - As against a creditor who was duly served with notice of an application for a homestead, it will, though the homestead proceeding does not so disclose, be presumed that a proper order to the surveyor to lay off and plat the homestead was granted; nor as to such creditor will a homestead so approved be treated as invalid because the plats of two lots composing the same "did not purport to be made by the county surveyor and were not sworn to, accompanied by an affidavit as the law requires." Dunagan v. Stadler, 101 Ga. 474, 29 S.E. 440 (1897).   RESEARCH REFERENCES   C.J.S.   - 40 C.J.S., Homesteads, §§ 37, 146 et seq.