Darke v. Bush , 57 Ga. 180 ( 1876 )

Bleckley, Judge.

1; The judgment adjudicated the lender’s right to recover the money from the borrower on the note declared upon, but it settled nothing as to what was done or ought to have been done with the loan. The judgment was no obstacle to receiving the evidence offered to show that the loan was not applied as the note indicated it was or would be.

2. Treating that part of .the instrument as a representation, it was open to contradiction even by parol evidence, unless it came with the force of an estoppel. And on the question in issue it did not have that force, for the reason that its truth or falsehood was wholly immaterial, in reference to that question, at the time the money was loaned.

3. Then the exemptions of the Code held equally against purchase money and all other debts: 41 Georgia Reports, 380. It was otherwise with the large homestead allowed by the constitution of 1868, and if that liad come in question, there might have been good reason for holding the borrower estopped: 45 Georgia Reports, 483. In the case before us, the exempt property was laid off and registered in the ordinary’s office before judgment was rendered for the creditor, and before the act of 1874 was passed, changing the law which prevailed at the time of the contract. Granting that the debt was in fact lor purchase money, the family of the debtor may have acquired a vested right which the act of 1874 could not divest. Upon this point the court below seems to have ruled nothing, and we, also, leave it untouched. We simply say that, notwithstanding the expression in the note, it was competent for the claimant to prove that the debt was not for purchase money.

Judgment affirmed.