Broome v. Davis , 87 Ga. 584 ( 1891 )

Bleckley, Chief Justice.

Before the translation of our brother Lumpkin to this bench, though his judicial accuracy was remarkable, ho shared in the fallibility which is inherent in all courts except those of last resort. Iu some rare instances he committed error, and the very last of his errors is now before us for correction. The facts of the case are correctly set forth in the reporter’s statement.

1. It is settled law that property paid for in full with other property previously set apart in due and proper manner under the homestead and exemption laws, takes the place of the latter, and is impressed with the homestead character. Mitchell v. Prater, 78 Ga. 767 ; Murray v. Sells, 53 Ga. 257 ; Cheney v. Rodgers, 54 Ga. 168, s. c. 59 Ga. 861 ; Morris v. Tennent, 56 Ga. 577 ; Dodd v. Thompson, 63 Ga. 393. This is true though the conveyance of the new property be made to the wife. Supra 78 and 53 Ga. Or’to the husband and wife. Supra 54 Ga. And the homestead right can be asserted against a purchaser with notice. Supra 53 and 54 Ga. A mortgagee stands on the same plane with a purchaser. Lane v. Partee, 41 Ga. 202.

2. Could the creditor and mortgagee of the wife, his rights having attached whilst the paper title to the land in controversy was in her, stand upon that title and claim protection as a mortgagee without notice, notwithstanding the husband was at the same time in actual possession of the premises ? Possession of land is notice to the world of whatever right or title the occupant has. Cogan v. Christie, 48 Ga. 585 ; Sewell v. Holland, 61 Ga. 608 ; Atkins v. Paul, 67 Ga. 97 ; Finch v. Beal, 68 Ga. 594 ; Loan Association v. Atlanta, 77 Ga. 496. In this State, notwithstanding his reduced importance as a domestic factor, the husband is still the head of his family, and though his wife may reside with him, she does not thereby divest his possession of the homestead and make the possession her own. Presumptively he is the owner. Primrose v. Browning, 59 Ga. 69 ; Neal v. Perkerson, 61 Ga. 346 ; City of Atlanta v. Word, 78 Ga. 276. Whilst for most purposes this presumption would be rebutted by the mere production of a conveyance from a third person to the wife, yet this alone should not excuse a stranger about to give her credit on the faith of the premises, from consulting the husband touching his rights as the actual occupant. His possession, to be of any force at all as notice, must be treated as directing inquiry to be made of himself, and not as a suggestion to go to his wife and deal with her upon what she might say, fortified by documents in her possession. So long as a man clings to his home in person, he has a right to be treated by-strangers as the head of the family, and as entitled to answer for it and himself touching his right to be there and remain. If the true title to the property is in him, though the apparent title be in his wife, he cannot be driven out as the result of contracta of sale or mortgage made by her without his consent, and with persons Who have not consulted him. Indeed, lie would be incapable of effectually consenting to any sale or mortgage of homestead property, except with the approbation of the proper judicial officer. Code, §§2025, 5212, 5218. The judgment is reversed.