Frost v. Borders

59 Ga. 817

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinion

Bleckley, Judge.

Land was mortgaged in 1866. The mortgage was foreclosed in 1873. Execution issued, and was levied upon the premises. The levy was arrested and sale prevented by an affidavit of illegality interposed by the mortgagor. The affidavit set up an exemption in behalf of the mortgagor’s family, founded' upon proceedings had in February, 1868. These proceedings were in accordance with the Code, as it stood prior to the constitution of 1868.

1. It is objected that the mortgage being foreclosed, the order of sale is final, that the exemption was, therefore, urged too late, and that if it could be urged at all, claim, and not illegality, would be the remedy. Whatever force there may be in these objections on strict legal theory, or as conducing to uphold mere form and finish of practice, is met and overcome by the nature and object of homestead and exemption rights. These rights are accorded mainly for the sake of women and children, and are anomalous and peculiar. In asserting them, the husband and father is heard for his family, not for himself. Failure on his part to assert them in resistance to the foreclosure of a mortgage, even if that is the more appropriate occasion, ought not to work their destruction. His supineness should have no such extreme effect on rights which have become vested by law in his family. Code, §2048. He alone can be heard in defence of the foreclosure suit. Ib., §3965. The wife and children are not permitted to become parties to that proceeding. Purchasers from a mortgagor may go behind the judgment of foreclosure where their protection requires it. 54 Ga., 462; 58 Ib.. 158. The wife and minor children are not strictly purchasers of property set apart as exempt, but they are persons for whom the law feels a special solicitude. In that solicitude, the policy of ex-emjDtion has its source and origin. A judgment which would not conclude ordinary purchasers may well be held not to conclude them. If they are not concluded, a claim at their instance, or on their behalf, would prevail against the levy, and arrest the sale. This being so, any doubt in respect to “ illegality ” as a remedy should go to uphold that remedy when it is the one adopted. Where it is plain that the property is exempt, expense and delay for the sole purpose of exchanging a doubtful mode of procedure for one absolutely correct, may be spared. The end is the important matter, and being precisely the same whether claim or illegality be employed as means, the means need not undergo nice criticism. Law belongs to the useful arts, rather than to the fine arts. With its hold upon the substance, it is not anxious about the perfection of form.

2. The deed offered in evidence and rejected, was by the wife alone, not by both husband and wife, as the Code (§2047) required it to be. It was properly ruled out. What aid to the mortgagee it would have afforded, had it been admitted, has not been brought within our comprehension.

Cited by counsel for plaintiff: (effect of foreclosure), Code, §3968; 13 Ga. 389, 393 ; 18 Ib., 488; 56 Ib., 94.

Cited by counsel for defendant: (exemption-right), 35 Ga., 180; (illegality), Code, §§3664, 2040, 2046, 3632; 47 Ga., 452; (foreclosure), Code, §§3964, 3968 ; 52 Ga., 605 ; 53 Ib., 280; 57 Ib., 348; 58 Ib., 64, top case; 55 Ib., 579, 582; 45 Ib., 631; (alienation), Code §2047; 55 Ga., 383; 54 Ib., 168, 548; 45 Ib., 310; 53 Ib., 257; 56 Ib., 577; Freem. Judg., §355; Rorer Ju. Sales. §556, chap. xv.

Judgment affirmed.