Yeates v. Donalson , 147 Ga. 335 ( 1917 )

Hill, J.

We are of the opinion that under the facts of this case the plaintiff was not entitled to recover. The children are of age, but Mrs. Yeates is still in life and in possession as a beneficiary of the homestead set apart in 1875, and as such entitled to the possession of the land in controversy. Williford V. Denby, 127 Ga. 786 (56 S. E. 1010). It is argued that the plaintiff had no knowledge of the existence of the homestead at the time he took the deed from Mrs. Yeates, or at the time of the sale under foreclosure proceedings, at which he bought. The answer to this contention is, that, even if actual or constructive notice is necessary in such a case, the record shows that Mrs. Yeates testified that she mentioned the homestead to Mr. Donalson before the foreclosure of the mortgage, and that she was in actual possession of the land. It is .argued also, that, if the existence of the homestead at the. time that Donalson bought was a good defense, Mrs. Y eates should have set up that defense to the foreclosure proceedings; and Bank of Forsyth, v. Gammage, 109 Ga. 220 (34 S. E. 307), and other cases, are cited as authority in support of the contention that the due and unresisted foreclosure of a chattel mortgage, followed by a regular sale of the property, concluded the mortgagor from setting up any defense which he might have set up by counter-affidavit, and that it was binding upon him as head of a family. We do not think these cases are controlling. In the Gammage case there had been a waiver of homestead before the homestead was set apart, and the defense sought to be set up after the judgment was by the head of a family who had the homestead set apart, on the ground that the waiver was void because of usury. That makes a very different case from the present.

Under the constitution and laws of this State, homestead property can not be sold except in the manner provided by law. Const, art. 9, secs. 1, 2, 9 (Civil Code, §§ 6582, 6583, 6590). See § 3416. It has been held that the-head of a family, in whom is the legal title to land set apart as a homestead under the constitution of 1868, can convey his “reversionary interest” in the land'. Aiken v. Weldon, 139 Ga. 15 (76 S. E. 359). In the instant ease the head of the family did not alienate; and it has never been held in this State, so far as we are aware, that a mere beneficiary can convey title to the homestead estate. Even if the legal title devolved on the beneficiaries at the-death of the head of the family, and if they conld convey the reversionary interest, they conld not convey the present homestead and right of possession. See Powell on Actions for Land, §§ 262, 263. '“The setting.apart óf a homestead does not change the title; it changes only the nse of the property. Any attempt at alienation (except for reinvestment in the method authorized by the statute) passes no title, at least no title of any potentiality during the life of the homestead — not even to the extent of estopping the head of the family himself from suing.” Id. § 78. In Planters Loan & Savings Bank v. Dickinson, 83 Ga. 711 (10 S. E. 446), it was held: “Since the adoption of the constitution of 1877, a homestead, though taken under the constitution of 1868, can not be mortgaged for any purpose, either by the husband or by the wife who applied for the homestead out of her husband’s property, he having refused to apply.” And in Phillips v. Taber, 83 Ga. 565 (10 S. E. 270), it was held: “Purchase by defendant in good faith of property which had been set apart to plaintiff as an exemption, under judicial process against him, and which was not subject to sale under the exceptions provided by law, carried no title thereto. It could be recovered by plaintiff as the head of a family, though he was present at the sale and received the surplus from the sheriff.” As said by Bleckley, C. J., in Van Dorn v. McNeill, 79 Ga. 121, 123 (4 S. E. 111), “'The constitution never contemplated that there should be any sale, if at all, until the whole could be sold.” Neither Mrs. Teates nor any of the other beneficiaries of the homestead property had authority to mortgage, encumber, or alienate the homestead property which had been set apart for the sole use of herself and her children under the constitution and laws of the State, the law nowhere providing for the encumbering or sale of- it in the manner in which she did mortgage and convey it. It is the policy of our law not to permit the encumbering or alienating of homesteads. “The statutes relating thereto will be strictly construed, and the rights of the purchaser will be closely watched and never enlarged.” Whittle v. Samuels, 54 Ga. 548, 549. If, therefore, the homestead property can not be mortgaged or alienated except in the manner provided by law; and there is no insistence that Ibis case falls within the exception, the fact that the beneficiaries stood by at the proceeding to foreclose the mortgage, and either failed or refused to set up the homestead as a defense, would not estop them, or either of them entitled as a beneficiary, from asserting their right of setting up the homestead as a defense in the ejectment suit. Timothy v. Chambers, 85 Ga. 267 (2), 272 (11 S. E. 598, 2Í Am. St. R. 163). Nor would the fact that James S. Yeates and Jesse E. Yeates as beneficiaries, even if they were properly served, had participated in a proceeding to partition the homestead property, the result of which was to award the homestead or some portion thereof to the plaintiff, and that they acquiesced in that decision, estop Mrs. Arkansas Yeates,- who was not a party to that proceeding, from setting up the homestead as a bar to recovery in the ejectment suit, on the ground that ejectment will not lie. But, under the view we take of the case, none of the defendants were estopped under the facts disclosed by the record. The above rulings being conclusive as against the right of the plaintiff in the court below to recover under the facts of this ease, a consideration of the other questions raised in the record becomes immaterial. Ach v. Milam, 118 Ga. 105 (3), 111 (44 S. E. 870).

Judgment reversed.

All the Justices concur.