Lamar v. Sheppard

5 S.E. 247, 80 Ga. 25

• Court: Supreme Court of Georgia
• Decided: February 24, 1888
• Status: Published

Opinion

Blandford, Justice.

This was a bill to enjoin Sheppard from turning out the wife of Lamar from the possession of a certain tract of land. It appears, from the allegations in the bill and the facts in proof, that this land had been set apart as a homestead to Lamar as the head of a family; and that it was afterwards levied upon under two tax executions against Lamar, and sold at sheriff’s sale to Sheppard for $15.00. It is contended by the plaintiffs in error that after Sheppard bought the land, and within the time prescribed by law, the amount of money required to redeem the land was tendered to Sheppard, and that Sheppard refused to receive the amount tendered and allow them to redeem. This was denied by Sheppard. Contradictory affidavits on the part of Lamar and Sheppard were read to the court. Under the circumstances, the court refused an injunction, and this is excepted to by the plaintiffs in error.

1. We do not think the court violated his discretion in refusing the injunction. It was in his discretion, under the facts, to have granted or refused it, and we are not disposed to interfere with the exercise of his discretion in this case. The case is still pending, and if, on the trial, it can be shown that the money was tendered and refused, as contended by the plaintiffs in error, then the injunction can be granted in the final decree. The plaintiffs in error have a right to amend their bill in the court below, and allege any other facts which will make a case authorizing a perpetual injunction.

2. We think the wife could properly tender the money under the circumstances alleged in the bill. At the time of the sheriff’s sale of the property, and throughout the period- allowed by law for the redemption of the property, the defendant was in jail and in the penitentiary. His wife was a beneficiary under their homestead estate, and we think she could tender the money. If she did tender it, Sheppard ought to have taken it and given back the land.

3. It was contended here that the homestead estate was not liable for the taxes of Lamar, the head of the family. This was preposterous, because the constitution and the laws of the State expressly declare that the land shall be subject to taxes. Thejl.fa. was against the head of the family; it was his property, and is his property yet; the title is in him, and it is liable for all of his taxes of every kind and description whatever.

Judgment affirmed.