Mozley & Co. v. Fontana , 124 Ga. 376 ( 1905 )

LüMPKIN, J.

(After stating the facts.) 1. It is not essential "that the head of a family should have the legal title to property in order to apply for a homestead or exemption. “No present interest or estate in land beyond that implied in the fact of possession is requisite to sustain the claim of exemption as against a debt or lien inferior to the exemption right.” Pendleton v. Hooper, 87 Ga. 108; Whitehead v. Mundy, 91 Ga. 198. In a contest between one who claims the homestead and a person asserting a paramount title to the property, the general law applicable to titles would determine their respective rights. As against a title conveyed to secure a debt a homestead would avail nothing. Johnson v. Griffin etc. Co., 55 Ga. 691; West v. Bennett, 59 Ga. 507; Christopher v. Williams, 59 Ga. 779; Kirby v. Reese, 69 Ga. 452. It therefore furnishes no ground of objection on the part of creditors to allege merely that the title to the property is not in the applicant, or that he has made a conveyance of it. In the present ease the objectors insist that the applicant can not obtain an exemption, because her husband does not own the property, and yet claim a status to urge this objection so as to subject the property as his. The objections made to the application of Antonio Fontana were not those specified in the statute. The ordinary dismissed the application, not on demurrer, but after hearing evidence. lie did not state any grounds for the dismissal or adjudicate in terms that no exemption could at any time be granted to the applicant. We think his action should be analogized to that of the magistrates in the case of Roseberry v. Roseberry, 31 Ga. 122, where it was held, that “An order of magistrates, or of a magistrate, before whom a possessory warrant is returned, dismissing the warrant, without any reason stated in the order or appearing in the record, will not be regarded as an adjudication of the right of possession in favor of the defendant, but as a nonsuit, or dismissal in the nature of a nonsuit.” The decision in that case has been criticised on another point, but not as to that just referred to. See Weaver y. Carter, 101 Ga. 209. In Phipps v. Alford, 95 Ga. 215, it was said: “Where an action was brought in a justice’s court, which after the hearing of evidence was dismissed by the court and an appeal entered by the plaintiff: and thereafter dismissed by him, this constituted no bar to bringing a second suit upon the same cause of action.” See also Herndon v. Black, 97 Ga. 327; Alabama R. Co. v. Blevins, 92 Ga. 522. The order dismissing the application of Antonio Fontana in 1903 did not estop his wife from making an application for an exemption in 1905. It might furnish additional reasons for so holding, if more were necessary, that some eighteen months intervened between the two applications; and even if the husband did not own or have an interest in the property when he made his application, it would not necessarily follow that such was not the case when the second application was made by the wife; and moreover the amended schedule annexed to the application made by the wife contains a considerable amount of property which was not included in the application of the husband. It is contended in the brief of counsel that these additional items arose from the use of the property described in the first schedule; but there is nothing-in the record to show this. In fact the objections filed to the husband’s application did not purport to cover all the property included in the schedule. When a homestead or exemption has been granted to the head of a family, he occupies the position of a trustee, and a judgment against him touching the homestead property, such as a judgment recovering it from him or subjecting it to a debt, binds the beneficiaries. Barfield v. Jefferson, 84 Ga. 609; Wegman Piano Co. v. Irvine, 107 Ga. 65; Willingham v. Slade, 112 Ga. 418. But the difference between such a judgment and one of the character here pleaded in bar is apparent.

Judgment affirmed.

All the Justices concur.