Gresham v. Johnson

70 Ga. 631

• Court: Supreme Court of Georgia
• Decided: February 13, 1883
• Status: Published

Opinion

Hall, Justice.

An execution, issuing from a judgment against B. A. Gresham, as principal, and against Johnson et al., as his securities, was paid off by the securities, and levied, for their reimbursement, upon the land in question. This land had been exempted prior to this levy, for the benefit of the said Gresham and Ms then minor son, under section 2040 of the Code of 1873. When this exemption was made, the family of the applicant consisted only of himself and one minor son, then under the age of sixteen years. At the date of the levy, the applicant and defendant in the execution, B. A. Gresham, was dead, and the minor son, William F. Gresham, had attained his majority. He interposed a claim to the property, contending that the title, by virtue of the exemption, vested in him. On this state of facts, the case was submitted to the presiding judge without the intervention of a jury, for decision. After argu ment and consideration, the property was found subject to the execution, and the levy was ordered to proceed. Exception was taken to this judgment, and the only question made for our consideration is, whether the exemption under this section of the Code vested the title in the claimant, it being admitted that the family was broken up by the death of its head, and by the son, the only other member, attaining his majority.

1. Our view of this case is that the setting apart of a homestead, or the allowance of an exemption, does not alter or change, or in any manner affect the title to the property exempted; it simply sets it apart to a particular, specified use, and to that extent imposes a charge, or incumbrance upon the estate; and when the family is broken up, either by the death of its dependent members, or by the sous’ reaching their majority, in case they are otherwise sui juris, the property becomes disencumbered, and is liable to the debts of the owner of the legal title; the use is then fully executed and is at an end. 59 Ga., 330; 61 Ga., 154. We do not mean to hold that, if females composed a part of the family, they would be deprived of the benefits of the homestead, whether they had attained their majority or not, or that it is at all indispensable that they should be the daughters of the head of the household; in their case, nothing more is required than that they were of the family for whose benefit the exemption was made ; the charge continues and the property is exempt from levy and sale, so long as one of them lives and remains single.

This, we think, is the result of the decisions heretofore made.by this court upon this subject; they have never gone further, and we shall not extend them so far as to divest the title of the owner and vest it in the beneficiaries. The law does not do this in terms, and we cannot, by a loose interpretation, give it such an effect. See upon this subject the case of Hall vs. Mathews et al., determined at February term, 1882, of this court, and not yet published, and the cases there cited.

* Wherever the title to the homestead is referred to as belonging to the beneficiaries, in any of the foregoing decisions, or in any of the cases which they cite, it will be evident that the word is not used in its literal and legal, but in a qualified or loose, sense as synonymous with interest.

Judgment affirmed.

68 Ga , 490.