¶1This was a claim case, on the trial of which the jury, under the charge of the court, found the property subject to the fi.fa. levied thereon. A motion for a new trial was made on the grounds therein stated, which was overruled, and the claimant excepted.
¶2The property was claimed as having been set apart to the wife of the defendant in execution as a homestead. It appears from the record that the defendant, T. J. Smith, on his voluntary application, was adjudged a bankrupt on the 3d of October, 1877, that his wife, on the 21st of October, 1877, filed her application for homestead. The deed of assignment in bankruptcy was made 23d October, 1877; the homestead was granted by the ordinary 3d of December, 1877.
¶3The court charged the jury “that in order'to entitle the wife of a bankrupt to a homestead under the constitu*225tion of 1868, she must apply for and have the same set apart prior to the adjudication of the husband as a bankrupt, or her application for homestead must be pending at the time of the adjudication,” and that is the alleged error complained of here.
¶4In view of the facts of this case as disclosed in the record, there was no error in the charge of the court, nor in overruling the claimant’s motion for new trial. Woolfolk vs. Murray, 44 Ga., 136. Lumpkin vs. Eason, Ib., 339.
¶5Let the judgment of the court below be affirmed.