Douglass v. Boylston

69 Ga. 186

• Court: Supreme Court of Georgia
• Decided: October 24, 1882
• Status: Published

Opinions

Jackson, Chief Justice.

1. Two questions are made in this record: First, does the debt or liability of an attorney at law to his client date from the time he receives and receipts for a note for collection, or from the time when he collects the money, so as to give the creditor and client of the attorney pref erence to a fund in the sheriff’s hands belonging to the attorney, over the right of the widow and child of the attorney to a homestead out of it, the receipt of the attorney antedating the constitution of 1868, and the actual collection of the money by the attorney being subsequent to that constitution ? If the obligation of the attorney’s contract was incurred when he gave his receipt, it being before 1868, his client’s debt antedates the constitution of 1868, and the homestead is a nullity as to such debt, 50 Ga., 81, and succeeding cases, following Gunn vs. Barry in 15th Wallace. When, then, was the date of the attorney’s contract and obligation to his client, so that the attorney could not set up a homestead right in property he had against it ? Was it when he gave his receipt or when he got the money?

Under the rulings of this court, it is the date of the contract, and not of the breach of it, that governs in respect to the priority of the creditor’s claim over that of the homestead. 54 Ga., 551; 61 Ib., 395; 63 Ib., 162. The homestead is unconstitutional if it impair the obligation of the contract, and that is the principle upon which in 15th Wallace, supra, the supreme court of the United States reversed this court and held that the homestead was void as to a debt prior to the time the constitution granted the homestead. So in 61 Ga., 395, cited above, this court say, on page 397, “ that the material date on the question of impairing contracts by after legislation, is the date of the contract, and not the date of -breaking or violating the contract.” And it was there held that where a covenant bore date prior to 1868, though the breach was afterwards, the covenantee as creditor held such a claim as made the right of homestead subordinate thereto. So in 63 Ga., 162, it was held that even the surety to an administrator’s bond, executed before the constitution of 1868, could not take homestead so as to defeat the breach of that bond, though the devastavit of the administrator did not occur until subsequently to that constitution.

What, then, is the contract of the attorney in the case before us now, and when was it made, so that its obligation would be impaired by after legislation ? His contract is to collect this note and pay over the money collected to the client. The receipt for collection, without more, makes the contract. The breach of it is the- failure to collect, if by the forms and process of the law it could be done, and by neglect or malfeasance the attorney did fail, or the failure to pay it over when collected. The obligation of the contract made when he contracted with the client was to do these things; that obligation would be impaired if he were permitted by subsequent legislation to take a homestead for his family with this money so collected in his pocket, and the right of his family to it after his death is the same, no more or less, than his when in life, so far as homestead is concerned.

Therefore, it appears from principle, as well as from the prior rulings of this court, cited supra, that the court be low7 was right in ruling as the court did on this point.

2. This view makes it unnecessary to rule the second point, but that the homestead granted in this case is valid and in accordance with law, there can be no doubt. The facts as to the mode of setting apart the homestead and disposing of the money by the ordinary’s judgment in the cases in the 65 Ga., 546, and in Johnson et al. vs. Dobbs, (this term), are unlike those in this case. But the first point is controlling, and a perfect homestead in form and law cannot take the money from the breach of this contract, the contract being prior to the date of the constitution of ,3868, though the breach be subsequent to it.

Judgment affirmed.

fSPEER, Justice, concurred.