Loyless & Griffin v. Collins

55 Ga. 370

• Court: Supreme Court of Georgia
• Decided: July 15, 1875
• Status: Published

Opinions

Warner, Chief Justice.

This was a contest between a judgment creditor of Collins and Collins himself, as to the appropriation of the sum of $120 00, which had been brought into court under a summons of garnishment, at the instance of Collins, the latter claiming the money as a homestead exemption. The court, by , its judgment, awarded the money to Collins, whereupon the judgment creditor excepted.

1. The plaintiff’s judgment was founded on an account for a,cotton gin which Collins had purchased but had not paid for, and had liad set apart as a homestead exemption. Inasmuch as the cotton gin had not been paid for, it was subject to the plaintiff’s judgment for the purchase money due therefor, but not the other property contained in the homestead exemption.

2. There is contained in Collins’ homestead exemption a note on Brown for $100 00, and two bales of cotton, worth $60 00. It is quite clear, we think, that the cotton for which Brown gave his note for rent was not included in the homestead exemption. The distress warrant of Collins against Brown was sued out on the 27th of October, 1873, and on the same day levied on the cotton, from the proceeds of which the money was raised, the subject matter of distribution, as appears from the record. Collins’ homestead exemption was not obtained until the 27th of December thereafter. Collins, the homestead debtor, cannot have Brown’s note as an exemption, and other cotton to the amount thereof, which was not embraced in his exemption. The cotton from which the money was raised had been levied on as' the property of Brown two months before the homestead exemption of Collins was obtained, and therefore it was not the cotton contained in his homestead exemption. If the cotton levied on was Brown’s cotton, two months before Collins obtained his homestead, it was not his cotton which was contained in Ins homestead exemption. In our judgment, the court erred in awarding the money to Collins as his homestead exemption on the statement of facts contained in the record.

Let the judgment of the court below be reversed.