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Simmons vs. Anderson.

clares, that "in this state the husband is the head of the family, and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for ber benefit, or for the preservation of public order.” The constitution of 1868 declares that each head of a family, or guardian or trustee of a family of minor children, shall be entitled to a homestead of realty to the value of $2,000 00 in specie, which, when set apart, is exempt from levy and sale, except for taxes, money borrowed and expended in the improvement of the homestead, or for the purchase money of the same, and for labor lone thereon or material furnished therefor, or removal of encumbrances thereon. When the constitution declares that each head of a family shall be entitled to a homestead in realty to the value of $2,000 00 in specie it was not intended that it should be compulsory on each head of a family to take a homesteail in his land whether he desired to do so or not. The obvious and fair construction of this clause of the constitution is, that each head of a family should be entitled to a homestead as therein provided, if he desired to have one, and not otherwise. When Mr. Simmons borrowed the money and executed his mortgage deed to secure its payment, he stipulated, under his hand and seal, that he waived for himself and family all right to a homestead in the mortgaged premises ; in other words, he declared that, as the head of a family, he did not desire to have a homestead on that land so mortgaged. As the head of his family, and owner of the land, he could have made an absolute sale of it, and thus have defeated all claims of his family to a homestead on the Jand. Why, as the head of his family, and owner of the land, could he not stipulate that he would not claim a homestead on it, the more especially if he did not lesire to have one ? Besides, it does not appear from the record in this case but that the defendant, Simmons, had plenty of other land than that mortgaged on which he could have taken a homesteail exemption as the head of a family. The obtaining and claiming a homestead exemption in the mortgaged prop

Holland et al. vs. Tyus et al.

erty by Mr. Simmons, as the agent of his wife, after stipulating in the mortgage, as the head of his family, that he waived for himself and family all right to a homestead in the mortgaged premises, (loes not, we regret to say, exhibit a very high standard of either his legal or moral obligation to pay an honest debt. In view of the facts as disclosed in the record, we affirm the judgment of the court below.

Judgment affirmed.

BENJAMIN L. HOLLAND et al., administrators, plaintiffs in

error, vs. John G. Tyus et al., defendants in error.

Where, during the late war, a creditor requested his debtor, whose note he

held, to send Confederate money to Flanders, or some other good house in Macon, to pay the note, and the debtor replied he would send it to Fears, at Macon, and about a month thereafter, sent it to Fears, writing to the creditor that he had sent it, but this letter did not reach the creditor, and the latter had no knowledge that the money had been sent, until after the war, when it had become worthless, the transaction was not a payment; and these facts would not bar a recovery on the note. The debtor having waited a month after giving notice that he would send the money to Fears, was bound, when he did send it, to see that information thereof reached the creditor.

Debtor and creditor. Payment. Before Judge WRIGHT. Mitchell Superior Court. May Term, 1875.

Reported in the opinion.

VASON & Davis, for plaintiffs in error.

STROZER & SMITH, for defendants.

BLECKLEY, Judge.

This was complaint on a promissory note, dated January 1st, 1861, and due twelve months thereafter. The suit was brought in 1866. There is no plea in the record, but the defense sought to be established by the defendants was pay

Holland et al. vs. Tyus et al.

ment. They were sworn in their own behalf. One of them (Tyus) testified that in 1863 the plaintiff told him to send Confederate money in payment of the note, by express, to one Flanders at Macon, and afterwards wrote to him to send it to Flanders or some other good house in Macon; that he wrote to plaintiff he would send it to Fears; and that about one month thereafter he gave the money to his co-defendant to be sent to Fears at Macon, after which he wrote to plaintiff that he had sent it; that whether the plaintiff ever received the money or the notice that it was sent, he did not know; neither did he know whether the money ever reached Fears, or, of his own knowledge, whether it was sent forward by his codefendant or not. The latter testified that he did send it to Fears at Macon, by express, in December, 1863, and that Fears told him he had received it. Whether it, or notice that it was sent, ever reached plaintiff, he did not know. When the witness went into bankruptcy, he returned this note as one of the debts he owed.

The plaintiff testified that the note was given for the price of a slave, and was intended by the parties to be paid in good money; that he wrote to Tyus several times for the money to be sent to him; Tyus wrote requesting an interview in Macon, and afterwards wrote that he would send the money to Macon to Fears; but if he ever sent it, witness never knew it nor received any notice of it; no money was ever offered him; if it had been he would have accepted it, though he did not recollect any particular agreement to receive Confederate money. If such money had been sent to Macon and he had known it he would bave gone after it.

No correspondence between the parties was produced. The letter of plaintiff, referred to in the testimony of Tyus, was lost. The other letters mentioned are unaccounted for, but no objection was taken to the recital of their contents. The jury having found for defendants, a motion was made for a new trial, which motion was overruled.

Taking the evilence in the most favorable light for the defendants we do not think a payment was established. Tyus

VOL. LVI. 5.

Holland et al. vs. Tyus et

wrote that he would send the money to Fears, and the plaintiff received that letter; but it does not appear that the plaintiff was advised when the money would be sent. Was he to look out for it during a week, or a month, or for what length of time? Why did Tyus wait about a month before taking any measures to send it? If he had sent it promptly the prior notice to the plaintiff might have sufficed; but as he delayed for a month he was bound to give fresh notice, anıl to see, at his peril, that the notice reached the plaintiff. He testifies that he wrote to the plaintiff that the money had been sent, but does not say to what point the letter was addressed, or by what conveyance it was sent. Indeed he does not say that it was seni at all, except as a sending of some sort may be implied in the expression that he wrote. But if he sent it, it never reached the plaintiff, and the plaintiff did not receive notice otherwise, and never got the money. Then the note remained in the plaintiff's hands, and, so far as appears, svas never called for. It was returned after the war by one «of the defendants, in a schedule of his outstanding debts, and the lefendant that so returned it is the one by whose testiniony the actual sending of the money to Fears is established. To treat so grave a matter as payment of a just debt as arising out of the loose, vague and careless transaction detailed in the testimony, would be to leny that security to the rights of a creditor which it is the province of law to afford and of courts to enforce. It may be that if all the correspondence between the parties was produced, or the contents minutely proved, the case would present a different aspect; but acting only on what is before us, we must pronounce the verdict unwarranted by the evidence, and order a new trial.

Judgment reversed.

Sloan vs. Briant.

ELIZABETH M. SLOAN, plaintiff in error, vs. GEORGE J.

BRIANT, defendant in error.

An action brought by a woman against a married man to recover money un

der a contract made before cohabitation to pay her $1,000 oo, and give her a house and lot in case of the birth of a child, though repeated and ratified often after the birth of the child, is a suit instituted in consequence of adultery, and in such a suit the woman is incompetent to testify: Code, section 3855.

Witness. Contracts. Before Judge McCUTCHEN. Bartow Superior Court. July Term, 1875.

Reported in the opinion.

M. R. STANSELL, for plaintiff in error.

WoFFORD & MILNER; D. A. WALKER; A. JOHNSON, for defendant.

JACKSON, Judge.

Mrs. Sloan, a widow, sued Mr. Briant, a married man, for the breach of a contract to pay her $1,000 00 and give her a house and lot. The contract, she alleges in her original declaration, was made before she yielded to his importunities and became the victim of his arts and allowed him to prostitute her person. He promised, in the event she would yield and a child should be born, to care for her and the child, and contracted to pay the money and to make over the property. Afterwards she amended this declaration, and set out the promise more clearly and specifically, and alleged that it was repeatedly made and ratified after the birth of the child. These allegations she proposed to prove by her own testimony. It was objected that she was an incompetent witness, the court sustained the objection, and counsel announcing that he had no further testimony to offer, the court non-suited her and dismissed the action, so that the single question is, was this woman a competent witness to prove her case ? Before the act of 1866, (Code, section 3854,) there can be no doubt

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