
    Hubbard Van Horn, plaintiff in error, vs. Jesse J. Bradford, sheriff, defendant in error.
    (Trippe, Judge, was providentially prevented from presiding in this case.)
    Where a sheriff levies a mortgage execution upon the land of the defendant, but before the sale was notified that the defendant’s wife had had a homestead set apart in the same, and an appeal had been taken to the Superior Court, the sheriff does not render himself liable to rule by postponing the sale until the plaintiff could obtain an order of Court directing him to sell the land if it was his duty to do so.
    Homestead. Rule against sheriff.
    Before Judge Johnson.
    Muscogee Superior Court.
    May Term, 1872.
    For the facts of this case, see the decision.
    D. H. Burtz; A. A. Dozier; M. J. Crawford, for plaintiff in error.
    Peabody & Brannon, for defendant.
    Cite 40 Georgia Reports, 298; 39 Ibid., 252; 42 Ibid., 542.
   Warner, Chief Justice.

The error complained of in this case'was the refusal of the Court to make the rule absolute against the sheriff on the statement of facts'disclosed in the record. The sheriff levied the moi’tgage ft. fa. on the land described therein as the property of the defendant, and advertised the same for sale; but before the sale thereof, was notified that the defendant’s wife had applied for and had the land set apart as a homestead, for the benefit of herself and minor children, by the Ordinary; that an appeal had been taken from the judgment of the Ordinary allowing the homestead to the Superior Court. Under these circumstances he took the legal advice of his counsel as to his duty, who adyised him to postpone the sale of the land until the present term of the Court, so that the plaintiff might obtain an order of the Court directing him to sell the land if it was his duty to do so, and so notified the plaintiff. The plaintiff offered to indemnify him if he would proceed to sell the land, which he declined to do; had no intention to disobey the order of the Court, but only desired to be protected in the discharge of his duty as sheriff. The land is still subject to be sold under the levy whenever the homestead question shall be settled adversely to the applicant therefor, and whenever the Court shall so order. In view of the facts contained in the record of this case, we affirm the judgment of the Court below in discharging the rule against the sheriff.

Judgment affirmed.  