
    Morgan et al. v. Williams.
    As the plaintiff’s right to recover necessarily' depended upon the validity of the alleged homestead; and as the evidence, taken all together, showed conclusively that the homestead had never been finally allowed and set apart, but that the plaintiff’s application for the same, while pending in the superior court on appeal from the court of ordinary, had been dismissed, the verdict was not supported by the evidence, was contrary to law, and ought to have been set aside.
    April 8,1895,
    By two Justices, Brought forward from the last term.
    Complaint for land. Before Judge Henry. Floyd superior court. March term, 1894.
    W. H. Dabney and Fouche & Fouche, for plaintiffs in error. Dean & Dean, contra.
    
   Lumpkin, Justice.

This was an action for the recovery of land, bi’ought by Mrs. Orlena Williams against Samuel Moi’gan and D. E. Morgan. The plaintiff’s right to z’ecover depended entii’ely upon whether or not a homestead had been duly and lawfully set apart for the benefit of herself and her daughters out of land belonging to her husband. The facts are somewhat complicated, and numerous questions were raised at the trial; but in the view we take of the case, a detailed statement and discussion of the same is unnecessary. It appears that Mrs. Williams applied for a homestead out of her husband’s land, and that the same was allowed and set apart by the ordinary over the objections of various creditors, who entered an appeal to the superior court. In that court an order was passed, with the consent of all parties at interest, reciting that the “ appealed case from ordinary ” was thereby dismissed. The parol evidence introduced without objection on the trial of the present case, taken all together and fairly construed,, showed conclusively that the real meaning of this order Was, Pot that the appeal alone was dismissed, the effect of which would have been to affirm the judgment of the ordinary allowing the homestead, but that the entire case was dismissed, and consequently that the homestead application itself went out of court and was never finally allowed.

It was conceded that if the homestead was not valid, there could be no lawful verdict for the plaintiff. . It will be seen from the above condensed recital of the facts, that the plaintiff never in fact obtained a valid homestead, the action of the ordinary in primarily allowing it having been practically set aside and annulled by the final order entered in the superior court. It follows that the verdict and judgment in favor of the plaintiff were contrary to law, and ought to have been set aside.

Judgment reversed.  