Stowers v. Mathews

25 S.E. 452, 98 Ga. 371

• Court: Supreme Court of Georgia
• Decided: April 27, 1896
• Status: Published

Opinion

Lumpkin, Justice.

In the case of Wheeler & Wilson Manufacturing Co. v. Christopher, 68 Ga. 635, this court decided that where a proceeding to> set apart a homestead was void as to' a particular creditor for want of notice to him, the head of the family could make a new application, give this creditor notice, and have the property set apart 'as against him. This decision was properly based upon the ground that, as the creditor in question was not estopped by the judgment rendered in the first proceeding, the family of the debtor were not concluded by it, and had the right to begin de novo as to this creditor and have set apart a homestead which would be good as against him. This is good law, and we adhere to- it.

It appears, however, in the present case, that a head of a family made an application for an exemption of personalty, of which application be failed to. give one of his judgment creditors notice; that after the exemption had been allowed, the applicant sold and parted with the title to and possession of certain cotton which had been included in the exemption; the creditor referred to. afterwards caused this cotton to be levied on while in the hands of the applicant’s vendee, as the property of the applicant; and the latter then filed a second application for exemption, including therein the cotton in question, this time giving the creditor due notice. The second application was allowed; and the question is: did the exemption thus, obtained relate back and relieve the cotton from the lien of the creditor’s judgment? We think not, and for the reason that when the second application was made, the debtor no longer owned or controlled the property, and consequently, had no right to llave it exempted. He. could not do. so for the benefit of his family, because it had gone beyond his reach; and he had no right to have it exempted for the benefit of another into whose hands it had gone at a time when it was clearly subject to. the creditor’s judgment.

Judgment affirmed.