Rogers v. Kimsey

Gilbert, J.

John D. Johns procured a judgment against W. M. Eogers, and caused a fi. fa. to be levied on 109 acres of land as the property of the latter. The wife of Eogers filed a claim. On the trial of the claim case the property was found subject to the fi. fa. The land was advertised to be sold, and on the day of sale Eogers, defendant in fi. fa., through his attorney, announced to the public that the land could not be lawfully sold, because 80 acres of said land had been set aside as a homestead, and because of litigation. Kimsey purchased the land at the sheriff’s sale with such notice, paid the purchase-price, and received a sheriff’s deed on the day of the sale, May 4, 1926. On April 24, 1926, Eogers applied to the ordinary for a homestead under the Civil Code (1910), § 3416. The schedule of property filed, in addition to personal property, included 50 acres of the-land and an additional 5 acres for each of the six children, making 80 acres in all, this land being a part of the 109 acres sold to Kimsey at the sheriff’s sale. The homestead was duly allowed by the ordinary. There was compliance with Civil Code § 3418, which provides that the county surveyor, or other surveyor if there be no county surveyor, lay off the land and make a plat of the same, and for the return of the plat to the ordinary within fifteen days after the application is made to the surveyor by the debtor, to be recorded as provided for schedules returned. On the day next after the sale, May 5, the county surveyor was requested to make a survey and plat, which was immediately done, and the same was recorded on May 6, 1926. Thereupon Eogers instituted the present suit to enjoin Kimsey from dispossessing him of 80 acres of the 109 acres sold to Kimsey, said 80 acres being the land set apart as a homestead by the ordinary. At the hearing the petitioner introduced evidence showing the public notice given at the sale and also the homestead proceedings. The defendant introduced the record of the suit instituted by Johns against Eogers, including the verdict and judgment, and also the record of the claim case. The court rendered a judgment denying an injunction. The petitioner excepted to that judgment, and also to the ruling of the court on the admissibility of portions of the record in the suit by Johns against Eogers.

The purchase of the land was made with full notice of the homestead. The plat of the homestead property having been made by the county surveyor and recorded within the fifteen days allowed by law, the sale was made subject to the homestead. The court, therefore, erred in refusing to grant an injunction. Civil Code (1910), § 3421; Kilgore v. Beck, 40 Ga. 293; Cook v. Hendricks, 146 Ga. 63, 64 (90 S. E. 383).

The notice given at the sale was sufficient to comply with the rule stated in Williams v. Smith, 128 Ga. 306 (57 S. E. 801).

Judgment reversed.

All the Justices concur.