Benedict, Hall & Co. v. Webb , 57 Ga. 348 ( 1876 )

Bleckley, Judge.

The debt was contracted without waiver of homestead. The creditor, however, resisted when the debtor sought to have a homestead set apart to him out of the mortgaged property. An adjustment of the controversy took place, and the homestead was set apart, subject to the mortgage. We cannot discover from the record, that the stipulation between the parties embraced any homestead right, other than the one then being asserted. ■ The homestead estate then in question, was not to be superior to the mortgage. That estate depended upon the life of the debtor’s wife, she being the only member of his family within the peculiar protection of the homestead law. There were no minor children. When she died, the estate terminated: 47 Georgia Reports, 629. The subject in reference to which the parties stipulated went out of existence. All the homestead proceedings had spent their force; and the property was left as if no homestead had been taken. This being so, was the debtor, upon marrying again, restrained by the letter or the spirit of his contract, from asserting the new homestead right which resulted from his again becoming the head of a family ? The question is not without difficulty, but our best opinion is that he was not. It seems to us that the two homestead rights were quite distinct; that one of them, and it alone, was the subject of the contract; and that the other was not, in any way, anticipated or provided for. The contract was not general but specific — the homestead then applied for was to be granted, subject to the mortgage. The debtor is not using anything growing out of that grant of homestead, to resist the mortgage. He sets up altogether a new right, and supports it by the assignment of the homestead which he procured to be made in bankruptcy.

Judgment affirmed.