Stewart v. Stisher , 1889 Ga. LEXIS 51 ( 1889 )

Bleckley, Chief Justice.

1. The land levied upon by virtue of a fi. fa. in favor of Stewart against Stisher, was set apart as a homestead, upon the application of Mrs. Stisher, but Stewart was not notified as a creditor, nor was his name included in the list .of creditors. For this reason, the homestead proceedings were void as to him. Wheeler & W. Co v. Christopher, 68 Ga. 635; Boroughs v. White, 69 Ga. 842. It was said in the argument that the wife of a debtor is not supposed to know all his creditors. But she must know them if she wishes to bind them. In taking homestead she represents her husband. She has only his rights, and must comply with the law just as he would have to comply with it did he make the application in person.

2. The note on which the judgment was founded from which the fi. fa. issued, contained a waiver of homestead and exemption. This waiver is now resisted on the ground that the debt was usurious, and the court admitted evidence to show that such was the fact; but we think that the question was closed by the judgment. No usury appears upon the face of the note or the record. Hightower v. Beall, 66 Ga. 102; Owen v. Gibson, 74 Ga. 465; McLaws v. Moore, 83 Ga. 177. The rate of interest expressed in the note is eight per cent., and this is not usurious. It is said that the rate originally in it was twelve per cent., and that the creditor altered it, before suit; to eight per cent.-; but this position is inconsistent with the judgment. The note was declared upon as it now is, and the judgment is an adjudication that it was genuine. The debtor acknowledged service of the petition, waiving process, and if the note was not genuine, he should have defended upon a plea of non est factum. Thompson v. Gowen, 79 Ga. 70. The judgment is a solemn adjudication, binding upon the debtor and his privies, to the effect that the rate of interest appearing on the note at the time the judgment was rendered, was the rate which was expressed in it at the time the note bore date, or if afterwards, altered, that it was with the maker’s consent, the note thus becoming pro tanto a new contract, of which new contract the waiver was part and parcel, the same having been left standing in the instrument. Judgment reversed.