Pass v. Pass , 195 Ga. 155 ( 1942 )

1. Where an equitable petition shows that the petitioner is indebted to the defendant on a note that is not due, and that the note will be paid on maturity; this is not such debt as will require payment or tender before institution of the suit in equity, in order to prevent dismissal on demurrer.

2. Under the pleadings and the evidence the judge was authorized to find that the plaintiff was entitled to an interlocutory injunction restraining the defendant from enforcing a judgment pending the plaintiff's application for homestead.

No. 14304. NOVEMBER 12, 1942. REHEARING DENIED DECEMBER 4, 1942. Mrs. Fannie L. Pass filed her petition against Mrs. Grady Pass as plaintiff in fi. fa., and Arthur Bell as sheriff of Hall County. She charged that she was the owner of a certain described piece of land in Hall County, which had been levied on by a deputy sheriff under an execution issued from the superior court of Hall County, in favor of Mrs. Grady Pass and against the plaintiff and W. L. Pass as defendants, in the sum of $300, and that the property was advertised and would be sold on the first Tuesday in June, 1942, unless enjoined. She stated, that the Shadburn Banking Company, held a deed to secure a debt of $75, which was not due, on thirty-three acres of this land, but that the debt would be fully discharged and paid off by her on its due date in June; that she had applied to the ordinary of Hall County for a constitutional homestead on the ground that she was an aged and infirm person, sixty-nine years old; that the particular piece of land was located near Buford, and was the home place of the plaintiff and her husband, W. L. Pass, a man over seventy years old, who had no property and was unable to work, his only income being an old-age pension received from his county; she stated that she had asked the ordinary to have the county surveyor go on this land, survey it, make a plat thereof, and place a valuation thereon, all costs therefor being paid by her; that the property was worth not more than $800, and that unless a court of equity should intervene and enjoin the sale of the property it would be sold, and in all probability would bring much less than the value placed on it by her. She prayed that the defendants be enjoined from bringing on a sale of the property until her application be passed upon and finally determined. She attached as exhibits (a) copies of the notice by the deputy sheriff of the levy on the property, the advertisement of sale to satisfy said judgment, principal, interest and costs, and the obligation of $75.00 for which Shadburn Banking Company had formerly held a deed to secure a debt, but which had been paid off and transferred to Mrs. Grady Pass and a reconveyance made to Mrs. Fannie L. Pass for the purpose of levy and sale; (b) copy of her application for homestead, including a schedule or list of creditors, costs due the officers of court, and record of filing by the ordinary.

The judge passed an order restraining the defendants, their agents, and deputies from doing the things complained of in the petition, particularly from selling the land described. On the day set for hearing on the rule to show cause, Mrs. Grady Pass demurred to the petition, on the grounds that it sets forth no cause of action; and that it "fails to set forth any ground for equitable relief, and does not plead a tender sufficiently, and shows on its face the plaintiff has not done equity in the case." She answered, admitting the allegations as to residence and jurisdiction, the description and ownership of the land by the plaintiff, and the levy of the execution and advertisement for sale of the property.

Answering further, Mrs. Grady Pass said that the plaintiff executed and delivered to the Shadburn Banking Company a deed to secure the payment of the debt which was evidenced by a promissory note containing a homestead waiver, and that after having obtained a judgment against the plaintiff for $300 principal, with costs, and being unable to find any other property on which to levy the fi. fa., she tendered to the Shadburn Banking Company the amount of money ($75) necessary to pay off the indebtedness due to it by the plaintiff, and under the Code, § 39-201, had a deed made from the Shadburn Banking Company to the plaintiff, which was filed and recorded before the levy; that before she took up the debt from the Shadburn Banking Company she notified the plaintiff that she had applied to have said deed made in order that she might levy and sell the property under said execution in her favor. Mrs. Grady Pass neither admitted nor denied that the plaintiff had applied to the court of ordinary for a constitutional homestead, that the plaintiff was an aged and infirm person, or that she had asked the ordinary to have the county surveyor go on the land, survey it, and make a plat thereof. She denied the allegations that the land out of which plaintiff had applied for a homestead was located near Buford, and was the home place of the plaintiff and her husband, who had no property and who was unable to work, his only income being an old-age pension he received from the county, and that the property was worth $800, and unless a court of equity intervene the property would be sold, as stated, and in all probability would bring less than the value placed upon it by the plaintiff.

The defendant also denied that plaintiff had no remedy at law. She answered, that the plaintiff knew that she had paid to the Shadburn Banking Company the amount due to it, and had a deed field and recorded; and that no tender was made to the defendant of the amount due before the filing of the petition, and no tender at all other than an offer of the principal by the plaintiff's attorney; that there was no offer to pay the costs of levy and advertising and the costs of court accruing up to the time the petition was filed; that the plaintiff, having stood by and seen the defendant incur the expense of paying to Shadburn Banking Company the amount due it, and of having a levy made, and the costs of advertising said property, and having waited until May 30 to present and file her petition to enjoin the sale, when the property had been advertised for sale on June 2, 1942, and having stood by with full knowledge of all the facts, and having failed to make any application to have a homestead assigned until May 28, 1942, after judgment had been rendered in January, 1942, the plaintiff was estopped from asserting her right of homestead as against the defendant, Mrs. Grady Pass; that under the Code the respondent was entitled to all the rights and privileges existing in favor of Shadburn Banking Company, and that she was entitled to have said property sold to satisfy the debt due the Shadburn Banking Company as against any right of homestead that existed in the plaintiff, since the plaintiff in writing expressly waived any right to a homestead exemption as against said debt; that the plaintiff contracted with the Shadburn Banking Company to pledge to it the property described in her petition, to secure the payment of the debt due to the Shadburn Banking Company, and that said pledge and security should be applicable to any other indebtedness or liability that the plaintiff might owe to the owner of the note, and that the defendant, Mrs. Grady Pass, was the owner of the note and became entitled to the benefit of the homestead waiver and the security afforded by said deed for all the indebtedness due by the plaintiff to her, and that the plaintiff was not entitled to prevent the sale of the property by homestead or otherwise, and that the relief sought by the plaintiff should be refused by the court, and that defendant should be declared entitled to a judgment against the plaintiff for all costs incurred, etc.

Upon the hearing the plaintiff introduced her petition as an affidavit in evidence. Her counsel stated that he had offered to pay counsel for the defendant $75, the amount of the principal of the Shadburn Banking Company note, after the suit had been filed, but had not offered to pay any costs; and he stated that he did not know whether the offer was a continuing tender.

The defendant tendered in evidence her answer as an affidavit; also the note for $75, and the security deed. The note contained the usual homestead waiver, as well as a provision to the effect that the security deed should be made applicable to the payment of the note as well as to any other indebtedness or liability of the undersigned to the holder. The deed was in conformity with the Code, § 67-1301 et seq., and had the usual provision that it was made to secure the particular indebtedness or any other indebtedness.

It appeared that the note had been transferred and assigned by Shadburn Banking Company to Mrs. Grady Pass before the levy, and the Shadburn Banking Company had made a deed to the defendant in fi. fa., Mrs. Fannie L. Pass, at the instance of Mrs. Grady Pass.

The judge ordered: (1) That the demurrer be overruled. (2) That upon payment by the plaintiff of $108.85, including the amount paid by the defendant to Shadburn Banking Company, and cost to the clerk of the court, on or before 1 o'clock, p. m. June 27, 1942, a temporary restraining order be granted, and that upon payment of said sum the defendant be restrained from proceeding with levy and sale of the property until the final trial of the case.

Mrs. Fannie L. Pass paid the sum required by this order within the time specified, and it became effective. Mrs. Grady Pass excepted. 1. The first question for decision is, did the court err in overruling the demurrer? It is insisted, in the brief of counsel for the plaintiff in error, that the petition did not show on its face that the plaintiff, if entitled to a homestead, was entitled to such as against the execution which she sought to enjoin, because, first, it did not affirmatively appear that she had not waived a homestead with reference to the judgment; and second, it was a proceeding in equity, and the plaintiff did not allege a tender before the time the suit was filed. The Code, § 37-104, declares: "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit." It has frequently been held that a plaintiff can not come into equity without first paying or tendering any amount admitted to be due. Bigham v. Chamlee,148 Ga. 488 (97 S.E. 407); Autry v. Southern Railway Co.,167 Ga. 136 (4) (144 S.E. 741); Clark v. C. T. H.Corporation, 181 Ga. 710 (11) (184 S.E. 592); Woodward v.LaPorte, 181 Ga. 731 (3) (184 S.E. 280); Kent v. Alamo,193 Ga. 445 (2) (18 S.E.2d 769). It appears in the instant case, that although the plaintiff in the equitable proceeding was indebted to the defendant, the debt was in virtue of a separate note that was not due at the time the equitable suit was instituted, and nothing was alleged which, under the terms of this separate contract of indebtedness, would accelerate its maturity so as to authorize enforcement of its collection before the normal due date. In these circumstances it can not be held that the plaintiff would be required to make a tender before coming into equity; nor, even construing the petition most strongly against the pleader, can it be held that the plaintiff had waived a homestead with reference to the judgment held by the defendant. The petition alleged a cause of action, and the judge did not err in overruling the demurrer.

2. The next question for decision is, did the facts of the instant case authorize the judge to enjoin enforcement of the judgment pending the plaintiff's application for homestead. The constitution, art. 9, sec. 1, par. 1 (Code, § 2-7201), declares: "There shall be exempt from levy and sale by virtue of any process whatever under the laws of this State, except as hereinafter excepted, of the property of every head of a family, or guardian, or trustee of a family of minor children, or every aged, or infirm person, or person having the care and support of dependent females of any age, who is not the head of a family, realty, or personalty, or both to the value in the aggregate of sixteen hundred dollars." Art. 9, sec. 2, par. 1 (Code, § 2-7301), declares: "No court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against the property set apart for such purpose, including such improvements as may be made thereon from time to time, except for taxes, for the purchase money of the same, for labor done thereon, for material furnished therefor, or for the removal of incumbrances thereon." It is provided by statute: "Every person seeking the benefit of exemptions provided in the constitution shall apply by petition to the ordinary of the county in which he shall reside, or in which minor beneficiaries reside where the application is made for their benefit, stating for whom the exemption is claimed; if by the head of a family, stating the names and ages of members of the family; if by a guardian or trustee of a family of minor children, stating the names and ages of the minor children; if by or for any aged or infirm person, stating the age of the person and the character of the infirmity; and if by a person having the care and support of dependent females, stating the names and ages of the females, and how dependent; and stating out of what and whose property exemptions are claimed, and complying with all the requirements of the laws for setting apart and valuation of homesteads and exemptions." Code, § 51-201. It is further provided: "Any debtor may, except as to wearing apparel and $300 worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for by the constitution and laws of this State, by a waiver, either general or specific, in writing, simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness, or contemporaneously therewith or subsequently thereto in a separate paper." § 51-1101. In Allen v. Pearce, 101 Ga. 316 (28 S.E. 859, 39 L.R.A. 710, 65 Am. St. R. 306), this court said: "While the term ``aged' as applied to human beings is not, for all purposes, susceptible of precise definition, and while it is not practicable to arbitrarily fix a period of life at which the condition of being ``aged' may be said to have certainly begun, it is safe to hold that a man sixty-six years old is entitled to an exemption of his property from levy and sale, under that clause of the constitution [Code, § 2-7201] allowing this right to ``every aged or infirm person.' This is true although the applicant may be ``a hale and hearty man.'"

In Collier v. Simpson, 74 Ga. 697, it was held: "When a homestead and exemption in bankruptcy was granted by the judge or register in the federal court, such exemption is no more subject to levy and sale than if it had been set apart by the ordinary having jurisdiction thereof. . . If application for homestead and exemption be made in land, the fact that a prior levy has been made will not prevent the grant of the homestead or exemption in the property before sale, or from the proceeds in court after sale." In Whittle v. Samuels, 54 Ga. 548 (2), it was held: "The policy of our law is not to alienate homesteads, and the statutes relating thereto will be strictly construed, and the rights of the purchaser will be closely watched and never enlarged." On page 550, it was said: "The great object is to secure a fixed home for the family, and it is not the policy of the law to encourage the alienation of that home."

In Bennett v. Trust Company of Georgia, 106 Ga. 578 (32 S.E. 625), the court said that the statutory homestead could not be taken in property which did not belong to the head of the family. This case is distinguishable from the case now before us, because the applicant for homestead there was a married woman living at the time with her husband and minor children, and she attempted to have the homestead from her property, but not on the ground that she was an aged person as in this case. In Lowry v.Williams, 47 Ga. 387, it was held that the discretion of the court in granting or refusing an injunction involving a homestead will not be disturbed. In Frank v. Weiner, 167 Ga. 892 (147 S.E. 51), it was held: "If a customer who is indebted to a merchant on an open account makes a written financial statement to the merchant, which expresses a waiver of homestead exemption relatively to his present indebtedness and to any future indebtedness that may be incurred on account of subsequent purchases of goods, but does not at the time agree to make purchases, and the merchant does not at the time bind himself to extend future credit, the homestead waiver expressed in the statement will not be contemporaneous with a subsequent contract of purchase resulting from a sale of goods wherein the merchant on faith of the waiver extends credit, and will not be a valid waiver as against the debt created by reason of the subsequently purchased goods."

In Ragan v. Taff, 134 Ga. 835 (68 S.E. 579), it was held: "A general waiver of homestead only operates in favor of the specific liability referred to in the waiver or obligation containing the waiver. Such waiver may be stated in the contract of indebtedness, or contemporaneously therewith or subsequently thereto in a separate paper. But a waiver of all homestead rights, in an application for a general line of credit, is not effectual to bar the debtor's right to homestead as against a debt thereafter contracted." See Southern Wholesale Corporation v. Pincus, 173 Ga. 421 (160 S.E. 377), where a distinction was drawn between, first, "a waiver of homestead exemption," and second, an "assignment" of a "sufficient amount" of the "homestead . . and exemption," meaning property that might in the future be set apart to the debtor as exempt under the homestead laws of the State of Georgia, "to pay in full principal, interest, attorney's fees, and costs, of any indebtedness."

In the instant case the note purchased by defendant contained a waiver of homestead exemption, but did not contain such an assignment of the homestead as referred to in the Pincus case supra. Applying the principles stated above, the homestead waiver contained in the note purchased by the defendant did not cause such waiver to become a part and effect of the judgment that the defendant was seeking to enforce. After the equitable proceeding was instituted, and after the court had acquired jurisdiction, the note containing a homestead waiver became due. The judge in seeking to do complete justice, which it was his duty to do under the Code, § 37-105 (Irons v. American National Bank,178 Ga. 160 (5 d), 172 S.E. 629), caused the interlocutory injunction to be conditioned upon the plaintiff paying such amount into court, which was done. Under the pleadings and the evidence, the court was authorized to find that the plaintiff was entitled to an interlocutory injunction restraining enforcement of the judgment pending her application for a homestead.

Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.