Judgment, afiemed.
Complaint for land in Hancock county by DuBose against Jackson. Upon the trial plaintiff offered in evidence a deed executed by one Turner, as guardiain of certain minor children, to Lee and Forbes. This-deed was objected to by defendant upon the grounds-that there was no evidencie showing that Turner had ever been appointed guardian, and no order of court granting him authority to sell the laud, except recitals-in the deed. The objections were overruled and the-deed admitted, it being shown to the courtthat it was drawn from defendant under notice, and was a part of the chain of title under which defendant claimed.
Plaintiff put in evidence a deed from Forbes to Lcer covering Forbes’ undivided interest in the land; also certain fi-ftt*. against Jjoe with levy thereof, December 3,. 1875, on the land sued for, as the property of Lee, and a deed executed by the sheriff to plaintiff, covering the-land, and dated January 4, 187G. Plaintiff then proved by defendant that he was Lees tenant, had been living-on the land five -years, rented it from Ijoo; and that Lee had not been on the place during this time, but had been living in Alabama. Plaintiff then introduced one Rogers, who testified that he saw Lee the preeed ing March in .Birmingham, Ala.; that Lee told him ho had made that place his home, and never expected to return to Hancock county to live. This evidence was received over defendant’s objection that Lee was not a party to the case, was a competent witness, and his declaration could not bind his minor children, but was merely hearsay.
Defendent put in evidence the record of a homestead applied for by the wife of Lee on December 80, 1875, in behalf of herself and five minor children; the land in question having been set apart thereunder at the October term, 1876, of Hancock superior court. Lee testified that his wife left surviving six minor children; that at the time of her death he and his wife and family resided on the laud; that his family is now composed of his wife, whom he married in Alabama in 1880, and six minor children, three by his first marriage and throe by his last; that when he left Hancock county it was his intention to return to his old home, and it had always been his intention to do so; that since he left there he had lived in Alabama and other States temporarily as a railroad contractor, aud it was still his intention to return to his home in Georgia; and that the rents and profits of the homestead he had used for the support and maintenance of his wife and minor children. Defendant then proved that after the ■ji. fas. had been levied and the sale advertised, the application for homestead was filed, aud pending the hearing before the ordinary the day of sale arrived, aud the sheriff offered the land for sale, when public notice was given of the peudiug application, and that whoever bought the land would buy it subject to Mrs. Lee’s right to a homestead and to the pending application, and after this announcement DnBose, the plaintiff, bid $5, and the land was knocked off to him.
The court refused a request to charge, in effect, that under the facts above stated, the sale was null and void and passed no title to the purchaser; and charged in accordance with the 3d and 4th head-notes, submitting also, the question whether Lee, at the time of leaving, intended to renounce his residence in Georgia and acquire. a domicile for himself and his family in Alabama.
J. T. Jordan, for plaintiff in error,
cited 61 Ga. 154 ; Thompson on Homesteads, 625, 626, and cit.; 79 Ga. 121 ; Id. 117 ; 56 Ga. 359, 361 ; Code, §1828 ; 60 Ga. 677 ; 32 Ga. 307.
W. M. & M. P. Reese, contra,
cited Code, §201 8; 40 Ga. 293 ; Id. 297 ; 44 Ga. 603 ; 46 Ga. 130 ; 56 Ga. 359 ; 73 Ga. 422 ; 86 Ga. 697 ; Code, §§3508, 3510, 3856 ; 18 Ga. 609 ; Id. 341 ; 34 Ga. 356 ; 17 Ga. 303 ; 19 Ga. 331 ; 38 Ga. 597 ; 44 Ga. 638 ; 54 Ga. 687 ; Code, §§46, 47, 1693, 3771.