Clements v. Lee & Fulton

47 Ga. 625

• Court: Supreme Court of Georgia
• Decided: January 15, 1873
• Status: Published

Opinion

McCay, Judge.

1. Ordinarily, the sale of land carries with it the crop then growing on it; but the laying aside of a homestead is not exactly a sale. It is an appropriation of the land for the benefit of the family, to the exclusion of the debts of the head. Our Act on the subject is very meagre, and does not go into details, and, in the administration of the law, it becomes absolutely necessary to resort to analogy and to the reason and spirit of the Homestead Act, to settle unexpected complications.

The Constitution, as well as the Act of 1868, provide for a homestead of the value of $2,000 00 in specie. Obviously, this is intended of the land itself. The object is to secure a home for the wife and children, and if the value of "the crop then on the land is to be considered part of the $2,000 00, the homestead, in many cases, would be in personal property, and not in land. A good crop of cotton is generally worth, per acre, as much as the land on which it stands. As we do not think the crop, growing, is to be counted in estimating the value of the homestead, we do not think it ought to go for nothing, and, as the fairest solution of the difficulty, we think its value at the time remains subject to debts and liens of the husband, already created. Here, the whole of the husband’s growing crop was under a lien. We think the crop, as it stood, covered as it was by the lien, was subject to the lien, and if the family take the crop as they find it, and mingle the then growing crop with their own subsequent work, they ought to recognize the lien as it exists at the dale of the homestead, at least, to the value of the crop at the time.

2. We think, therefore, there is no error in this verdict, since it only sets up such part of the lien as existed at the date of the order setting aside the homestead. On the other point we do not decide, though we do not doubt but that a claimant may show that the Court issuing the fi. fa. had no jurisdiction of it. ■ The difficulty here is, that neither the bill of exceptions nor the motion for new trial shows affirmatively that the Judge did in fact refuse-to permit proof of want of jurisdiction to be made.

3. True, it is made one of the grounds of the motion for new trial that the Judge did so refuse, but the Judge refuses to make the rule absolute in general terms, and there is nothing in the rule nisi to show that the facts of such ruling exists. Parties moving new trials should be careful to see to it that they get the certificate of the Judge, either in the motion itself or in the bill of exceptions, that the facts stated are true. This bill of exceptions simply says that the Judge overruled the motion, and assigns error on his judgment in that alone. Perhaps he did this because the ground was not true.

Judgment affirmed.