Broach v. Barfield , 57 Ga. 601 ( 1876 )

Bleckley, Judge.

1. Georgia, for a brief period, tolerated free trade in money. While the act of 1873 (pam., p. 52,) was in force, conventional interest was unlimited. Any rate for which the parties might stipulate was allowable. It is true, that to make the contract obligatory beyond seven per cent., the promise, as to the excess, had to be in writing; but there was no prohibition upon parol promises. They were not treated as tainted or corrupt, but simply as not obligatory. It was no more illegal to make them than to make a will without three witnesses, or to make a promissory note without any consideration, or to make the promise of a future gift. They were impotent, but harmless — null, but not noxious. Wanting in the prescribed authentication by writing, they were as if they had never been. To the legal idea of usury the element of invalidity is not sufficient; there must be the further element of illegality. Usury is not a neutral, but an enemy. The act above referred to repealed, expressly, all laws upon the subject of usury.

2. In the light of the Code, section 196’9, of 54 Georgia Reports, 45, and of 55 Ibid., 650, it can scarcely be considered an open question that an absolute deed passing the legal title, may be made as security for a debt. The point now raised is that the debtor’s wife did not sign the deed or consent to it. But he had no wife. Surely that is a sufficient reason for the omission,

3. The adjudications above referred to, as well as that found in 55 Georgia Reports, 412, recognize the sufficiency of such a deed to maintain ejectment. If sufficient before bankruptcy, there is no reason why it should not be afterwards. Bankruptcy does not divest any person of title but the bankrupt himself. It does not strip title off of other people and clothe him with it. It is, as to debtors, a means of surrendering property, not of acquiring it. It will not even remove incumbrances. Mere liens will adhere to the bankrupt’s effects, unless creditors choose to surrender them. Discharge from the debt does not work extinction of a lien. How, then, can it extinguish an outstanding legal title?

4. That the land was set apart in bankruptcy to the bankrupt as his homestead exemption, is equally unavailing to invigorate his title. He acquired no new or additional property in Jthe land by claiming it as exempt and having it allowed to him. He simply continued to' hold as he had held before: See 55 Geor'gia Reports, 579. His interest in the land was the right to have a conveyance, according to the bond for titles, upon paying what he had bound himself to pay. Cut down his interest to its real proportions, and there is no conflict between the disposition made of the land in bankruptcy, and the title to it now asserted by the plaintiffs in ejectment. The plaintiffs challenge the bankrupt’s title, not his exemption. They grant that all he has is exempt, but they make the troublesome question that, as against them, the land does not belong to him.

5. That the bankrupt held a bond for titles and claimed the land as his homestead exemption, furnished a sufficient basis for all that was done in reference to the land by the court of bankruptcy. Whether the objectors had the title paramount or not, they had no footing in that court, for they had not proved any claim against the bankrupt’s estate. They, however, did not lose their title by appearing there and interposing objections, whether the objections were overruled or left undisposed of. What they did, was simply idle, for whether the exemption was worth anything or not, the bankrupt had a right to have it recognized by that court. To recognize the exemption and overrule objections to it, was to adjudge nothing but that the land ought to be left as it was and not be brought in as assets for administration in bankruptcy. What else is signified by exemption in bankruptcy?

6. The principles of this opinion, thus far, will be found comprehensive enough to dispose of all the special pleas, none of which amounted to a defense to the action, and all of which should, therefore, have been stricken. ■ To try the truth of an insufficient plea is a waste of time.

7. The defendant could have made out a good defense to the action by paying or tendering the money due on his notes. That would have made his equity complete, but without that it was incomplete. We see no obstacle to his becoming entitled to re-enter, even after eviction under the judgment, by paying or making a tender of the money. Let him do equity and have equity.

Judgment affirmed.