Anderson vs. Kilgo. where it was covered up with ashes; the fact that she was seen shortly afterwards washing her clothes, which were very bloody, and her refusal to say whose clothes they were; the fact that the child was found in a dry well within twenty-five or thirty yards of the house in which she lived; the fact that there was no other woman in that neighborhood so far advanced in pregnancy; the fact that she was seen one day apparently in a very advanced stage of pregnancy, and that a few days thereafter she showed no signs of pregnancy; the fact that she had no infant with her after the signs of pregnancy had disappeared, and denied having given birth to a child, and the further fact that she did not undertake to explain any of these things, all go to show to our minds that the dead child was hers. These facts were sufficient, in our opinion, to exclude every other reasonable hypothesis but that of her guilt. Judgment affirmed. ANDERSON vs. KILGO. The dormancy of a judgment which was obtained and on which execution issued in 1876, but upon which execution no entry by the proper officer was made until 1888, was not prevented by the fact that in 1888 it was levied upon property which had been set apart as a homestead for the family of defendant in execution prior to the date of the judgment, which homestead did not expire until December, 1886. Hart vs. Evans, 80 Ga. 330, cited and distinguished. December 7, 1888. Judgments. Dormancy. Homestead. WELLBORN. 1888. Reported in the decision. PRICE & CHARTERS, by brief, for plaintiff. No appearance for defendant. Before Judge April term, BLANDFORD, Justice. Anderson vs. Kilgo. Anderson obtained a judgment against the administrator of T. H. Kilgo, March 6th, 1876, and on the same day an execution was issued thereon. No entry by the proper officer was made thereon until March 22d, 1888, more than seven years thereafter. It was then levied upon property which had been set apart as a homestead to the family of Kilgo, prior to the date of the judgment, the homestead not expiring until December 19th, 1886. It was contended by the plaintiff in execution (the plaintiff in error here) that, inasmuch as the execution could not be levied upon the property during the existence of the homestead, the judgment was not dormant. The court below thought otherwise; and we think so too. While it may have been true that the defendant had no property upon which an execution could be levied, yet as no entry was made thereon within seven years, it became dormant. A man might have no property for more than seven years after the rendition of a judgment against him, and might afterwards acquire property, but that would not revive or render effective a judgment which had become dormant. It was contended that the case of Hart vs. Evans, decided at the October term, 1887, of this court, (80 Ga. 330,) is in point in this case, and is in opposition to the views we now express. But upon an examination of that case, it will be seen that the judgment therein was not dormant, and the question of dormancy of the judgment did not enter into the case. In that case, the exempted property had been sold to a third person, who went into possession of the same, four years before the expiration of the homestead. It was held that this time did not run in favor of the purchaser against one who levied a judgment after the expiration of the homestead, which judgment had been obtained prior to the Leverett vs. Stevenson. purchase and to the expiration of the homestead. The court held that the creditor was not barred where the law prevented him from proceeding. But the judgment in that case, as we have said, was not dormant; so the cases are entirely different. The judgment in the present case being dormant, the levy was of no effect. Judgment affirmed. LEVERETT vs. STEVENSON. From the petition and exhibits thereto, it appears that the partition in question of certain lands between petitioner and her mother, made under the provisions of the will of petitioner's father by appraisers appointed by the ordinary, was made in April, 1874, and that the appraisers made their return to the ordinary in the same month and year, and that petitioner knew in what manner the land had been divided. If the division was unequal, she ought to have filed her objections then and had the matter passed on by the ordinary, so that, if the objections were sustained, he could have appointed new appraisers and had a new partition made. After waiting fourteen years, it was too late for her to object to the return or to have a new division made. The demurrer to the partition was therefore properly sustained. December 3, 1888. Division in kind. Laches. Mistake. Before Judge LUMPKIN. Lincoln superior court. April term, 1888. Reported in the decision. W. D. TUTT, by JOHN C. REED, for plaintiff. W. M. & M. P. REESE, for defendant. SIMMONS, Justice. Mrs. Sallie A. Leverett, by her petition filed in the superior court of Lincoln county March 26th, 1888, alleged that, in September, 1853, Peyton W. Norman, of Leverett rs. Stevenson. said county, died testate, leaving McMullin and Hawes, executors of his will. By the terms of the will, his real estate was to be partitioned between his wife and children in the following manner: When each child should arrive at the age of twenty-one years, or marry, his or her portion of said real estate was to be set apart or divided to him or her, leaving the portion belonging to the widow and minor children still undivided. The petitioner being the youngest child of the testator, her share of the land was the last to be divided between her mother and herself. In order to carry out the division, appraisers were appointed by the ordinary of the county, who, instead of dividing the lands by an actual survey, ran off the entire tract, ascertained by the surveyors to contain 1,058 acres, and partitioned half of it, 529 acres, to her, and the other equal portion to the widow, her mother. The surveyor ran a line through the tract, by which he thought he equally divided it into portions of 529 acres each. The appraisers then made a return to the ordinary of their acts, and returned 529 acres as having been set apart to the petitioner in this case, and 529 acres to the widow. After the division, the petitioner took possession of the portion assigned to her, thinking the land had been equally divided. Afterwards, in June, 1886, the widow died, leaving Stevenson as her executor, and he proceeded to advertise and sell the land. The petitioner then had the tract assigned to her surveyed, and ascertained that it contained only 444 acres; whereupon she gave notice to the executor of Mrs. Norman of the fact that she had not obtained her full share of the land, and of the fact that the tract assigned to Mrs. Norman contained more than her share; and asked that he have the land surveyed and equally divided between the petitioner and Mrs. Norman's estate; which request the Leverett vs. Stevenson, executor refused to accede to, and he proceeded to sell the land by the tract, as containing 450 acres more or less, and indirectly became the purchaser at the sale. After said sale and purchase by the executor, the petitioner repeatedly asked him to have the tract surveyed and divide with her equally, but he refused. She alleges that it would be grossly inequitable and unjust to allow him to possess, use and enjoy the land which, under the will, should be hers, and which she failed to have set apart to her by mistake of the surveyor. She prays process against him requiring him to answer on oath all the charges in the petition, and to abide the decree of the court, and to surrender to petitioner the land which he now illegally holds, or pay her its value, with the yearly profits. Attached to her petition, as exhibits, were the will of her father, executed in July, 1853, and the return of commissioners appointed by the ordinary to set off a distributive share from the estate of her father to the petitioner. This return allots to her various items of personal property, and "529 acres of land on the east and south side of home place, as shown in the plat of said land, valued at $3 per acre," equalized by note from Mrs. Norman to the petitioner. This return is dated April 30th, 1874. It is accompanied by a receipt from the petitioner to the executor, acknowledging the receipt of "the above" in full for her part of the whole estate coming to her in final settlement, subject to the executor's right to control, manage and sell the property to pay certain debts. This receipt is dated April 30th, 1874. The defendants demurred to the petition, (1) because there is no valid cause of action set forth therein; (2) because it appears therefrom that the plaintiff's rights, if she ever had any, are long since barred by the statute of limitations. The demurrer was sustained on the first ground thereof, and to this decision the plaintiff excepted. |