Patterson v. Wallace

47 Ga. 452

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Montgomery, Judge.

A creditor is not obliged to go before the Ordinary and contest the right of a debtor to a homestead on any other grounds than those stated in the sixth section of the Act of 1868, and as that section is amended by the fifth section of the Act of 1870. But if he voluntarily appear and submit issues to the Ordinary, which but for such submission that officer would have no power to pass upon on an application for homestead, and of which the Ordinary takes jurisdiction, such creditor will be bound by the judgment.

Whether the plaintiff in fi. fa. did go before the Ordinary and submit the issue to him which is set forth in the amendment to the defendant’s affidavit, and what the Ordinary decided, requires investigation to determine, and the affidavit should not have been dismissed on demurrer. If the Ordinary granted the homestead on demurrer, as it were, to the proof showing that the plaintiff’s debt was created for the purchase money, thus declining to take jurisdiction of that issue, then the principle laid down in Chambliss vs. Phelps, 39 Georgia, 386, would seem to warrant the plaintiff in proceeding with his execution so far as the homestead may present an obstacle; but if the Ordinary decided that the debt was not created for the land, it would be res adjudieata. The better practice for creditors, whose claims come within any of the exceptions contained in the Constitution would be not to contest the homestead, but to endeavor to subject it to their claims notwithstanding the judgment setting it apart, as is now provided for by the Act of December 14th, 1871.

Judgment reversed.