Tappan Bros. & Co. v. Hunt

74 Ga. 545, 1885 Ga. LEXIS 357

• Court: Supreme Court of Georgia
• Decided: March 30, 1885
• Status: Published

Opinion

Blandrord, Justice.

The defendant in error applied for homestead and exemption in certain lands.

* The plaintiffs in error objected to the allowance of the same, among other grounds, because they were the purchasers of the property sought to be set apart, under executions founded on judgments, which judgments were founded on contracts of applicant, wherein he had waived all right of exemption or homestead. This objection was demurred to by the applicant, upon the ground that it did not embrace any of the objections allowed .by law. The court sustained the demurrer, and disallowed, overruled and dismissed said objection. This ruling is excepted to, and constitutes the only ground of error relied on here.

If the land which an applicant for homestead and exemption seeks to have set apart to himself has been purchased by a person under a sheriff’s sale, by virtue of ah execution and judgment against the applicant, which judgment is founded upon a contract made by the applicant with the plaintiff in execution, such purchaser occupies the position of a creditor of the applicant, and he may urge any objection to the grant of the application which the creditors might have done. It is too manifest for argument that the creditor might object to the grant of the homestead and exemption, that the applicant had waived his right to take the same in his favor, and such is the ruling of this court in 43 Ga., 418, See also Code, §2010.

. The purchaser has all the rights of the creditor.

Judgment reversed.

The application for homestead was under the constitution of 1877.