Citation Numbers: 80 Ga. 336
Judges: Simmons
Filed Date: 12/19/1887
Status: Precedential
Modified Date: 1/12/2023
It appears from the record that R. M. Young, of Gordon county, executed his note and mortgage to Barrett & Cas
When Young died, he left a widow and two minor children. The widow died July 20th, 1883, and the youngest child became of age some time in the year 1885. Foster & Harlan went immediately into possession of the land after the sale in December, 1878, but received no conveyance from the administrator until December 1879, when the purchase money was fully paid. They remained in possession thereof until they sold to Durham in February, 1883, and Durham went into possession and remained on the land up to the time of the levy of the mortgage fi. fa. of Barrett & Caswell, to-wit, April 27th, 1886. The fi.fa. was levied on the east half of lot 260, all of lot 261, and
Upon the trial of the case, the jury, under the charge of the court, found the property not subject. The plaintiffs made a motion for a new trial upon the several grounds contained therein, which was overruled by the court, and the plaintiffs excepted, and bring the case to this court for review. The view we take of this case renders it unnecessary to pass upon all the grounds of the motion insisted upon before us.
Exception is made in the 5th ground because the court refused to charge, as requested by-the plaintiffs in writing, as follows: ££ The lien sought to be enforced in this casé was given by Young in his lifetime to the plaintiffs, and I charge you that no sale could be made of this property by the administrator of Young which would divest plaintiffs’ lien.” . . . . . .
The 7th ground of the motion for new trial is, Because the court erred in giving the following charge to the jury: The homestead in evidence set apart by the assignee in the bankrupt court, is a provision for the protection of the beneficiaries of the homestead, in the enjoyment and use of the property, as against the creditors of R. M. Young; and if the beneficiaries acquiesced in the sale of the property by the administrator, the creditors of Young cannot complain as such, and the sale, if otherwise valid, would be good as against the plaintiffs here to pass the title out of the estate of Young. If there was a valid order of the court of ordinary authorizing the sale by the administrator, and the sale was had in every respect in accordance with law, the plaintiffs’ lien in the land would be divested by the administrator’s sale and transferred to the proceeds of the sale in the administrator’s hands.’ ”
We think the court erred in giving this charge and in refusing to give the charge as requested by the plaintiffs.
This court has also held that, where a homestead or exemption has been set apart under the laws of Georgia, that homestead or exemption, either under the constitution of 3 86S or under the constitution of 1877, exists as long as the family for whose use it was set apart exists and resides in this State. Nelson vs. The Commercial Bank, Hart vs. Evans; and First National Bank of Chattanooga vs. Massengill, ante, pp. 328, 330, 333.
This land having been set apart as an exemption to Young by the bankrupt court, and Young having at the time a wife and minor children, under the construction put upon said exemption or setting apart by the bankrupt court, this mortgage fi. fa. could not,proceed against this land so long as the wife lived or the minor children were under age. The widow living until 1883, and the youngest child not becoming of age until 3885, the fi.fa. was held off from this exempted property until the latter time, and it would have been illegal for any sheriff in this State to have levied this fi.fa. upon the same.
But it was claimed by the counsel for the defendant in error that the adjudication in bankruptcy did not divest Young’s title to this land, but that the title remained in him the same as if he had never been adjudged a bankrupt. The title remaining in him, Young was authorized to sell the land exempted or set apart to him, and if he could do so, his administrator, who represented him, was authorized
This opinion is not in conflict with the decision in the case of Newsom, adm'r, vs. Carlton, adm'r, 59 Ga. 516. In that case it was held that, where an administrator sold land under a proper order of the court of ordinary, the sale “ divested the lien of mortgages from the mortgaged property and transferred that lien to the fund that property brought.” In that case, no homestead or exemption had be,en set apart by the ordinary or by the bankrupt court. The debts of the intestate which the mortgage was given to secure still existed as debts against the deceased, and there was nothing to prevent the levy and sale of the property under execution by the sheriff; apd .court properly held that, upon a sale by the administrator under a proper order, the lien of the mortgage was divested from the land and was transferred to the fund in the hands of the administrator. In this case, we have shown that the lien of the mortgage belonging to Barrett & Caswell was held in abeyance by the act of setting apart this land as an exemption by the bankrupt court, and that they had no right to levy or to sell as long as the widow lived or the-children were under age.
Judgment reversed.