Branch v. Ford

26 S.E. 759, 99 Ga. 761, 1896 Ga. LEXIS 515

• Court: Supreme Court of Georgia
• Decided: November 30, 1896
• Status: Published

Opinion

Atkinson, Justice.

The defendant was the holder of a promissory note against the plaintiff, which note was secured by a mortgage upon a tract of land containing 175 acres. In the execution of the note, plaintiff waived 'the benefit of the homestead and exemption law. Defendant sued the note to judgment, foreclosed his mortgage, caused the property to be sold, and at the sale became himself the purchaser. He was proceeding to dispossess the plaintiff when the latter filed a petition for an injunction, alleging that prior to the execution of the note, the property had been set apart to him as a homestead, and praying that an injunction be granted to restrain the purchaser from dispossessing him. Upon the trial of the case a verdict was rendered in favor of the defendant, and the injunction was refused.

It appeared that the plaintiff was the head of a family, was the owner of the premises in dispute; that he applied for and had assigned to him a homestead under section 2040 of the code; and that this application and the allowance of the homestead were in all respects regular, save that the .allotment of land which 'the surveyor was directed to lay off and did lay off had never been recorded by the ordinary. The land allotted to him did not cover the entire tract. A motion for new trial was made upon the general grounds, which was refused; and we are now to consider whether the homestead.waiver entered into subsequent to the allowance of the homestead was effective as against the defendant’s claim.

1. Where it is sought to set apart as a homestead realty tinder section 2040 et seq. of the code, and the head of 'the family owns more land than the amount specifically allowed to be set apart to him by law, the homestead is neither set apart nor does it become operative as a homestead until the land has been actually laid off and a plat thereof returned to and recorded by the ordinary. The latter is one of the indispensable requisites in such a case to vest the title in the head of the family, so as to free the same from the lien of a judgment against him. See Pritchard v. Ward, 64 Ga. 446. According to the principle announced in that case, and which is above stated, the homestead in the present case was never legally set apart, so as to protect it against the lien of judgments against him.

2. Until the debtor has availed himself of the benefit of the homestead law, and had the property claimed by him as a, homestead actually set apart and assigned to him, he has competent authority, under the constitution of this State, upon his own account, and upon account of his family, to waive the benefit of the homestead law. Actual segregation of the property as a homestead, set apart in the manner pointed out by law, is essential to deprive him of this right, and the recording of the plat, as we have before seen, is essential to the act of segregation. Therefore, the waiver of the homestead in the present case having been made before the homestead was actually set apart to him, he was bound by the waiver, and his property was not protected from levy and sale by the incomplete homestead which he claimed. Judgment affirmed).