Norris v. Aikens

117 S.E. 248, 155 Ga. 488, 1923 Ga. LEXIS 104

• Court: Supreme Court of Georgia
• Decided: April 14, 1923
• Docket: No. 3378
• Status: Published

Opinion

Beck, P. J.

Norris, executor, obtained a judgment on March 25, 1921, against Newsome. The judgment was based on a homestead-waiver note. Newsome was a voluntary bankrupt; the judgment adjudicating him a bankrupt was rendered on January 31, 1922. In his petition in bankruptcy he claimed an exemption, and on February 24, 1922, the trustee in bankruptcy, on the bankrupt’s application therefor, set apart to him an exemption, consisting in part of certain wages due him by the Georgia Railroad. On February 21, 1922, Newsome transferred and assigned his right, title, and interest in the property claimed as exempt to Aikens. Subsequently .Norris, executor, filed an equitable petition, in which he prayed that Newsome be enjoined from receiving the sum of $246.78 from the trustee in bankruptcy, which was a portion of the homestead, and prayed that such sum be paid to Norris, executor, to be credited upon the execution issued upon the judgment referred to above. Aikens intervened, setting up his rights as transferee and assignee of the right and- title to the property.- Upon the hearing of the issues thus made the court rendered judgment in favor of Aikens, refusing an .injunction, and denying a receiver as to the $246.78. Held:

No. 3378. April 14, 1923. L. D. McGregor, for plaintiff. Hamilton Phinizy and George Hains, for defendants.

1. The judgment in favor of Norris, executor, did not give him a lien upon the property here in question, it being a chose in action. Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619 (28 S. E. 393); Armour Packing Co. v. Wynn, 119 Ga. 683 (46 S. E. 865).

2. The waiver contained in the note upon which the judgment in favor of Norris, executor, was based did not give him right and title to the homestead. The waiver of homestead does not convey an estate.

3. There was no attack upon the validity of the assignment, and it .had the effect of conveying title to Aikens; and the court did not err in refusing an injunction and receivership, and in awarding the funds to the assignee.

4. These rulings determine the controlling question in the case.

Judgment affirmed.

All the Justices concur.