Wells v. Hawkins

61 S.E. 121, 130 Ga. 524, 1908 Ga. LEXIS 333

Opinion

'Eish, C. J.

Where, in a statutory proceeding to foreclose a mortgage on realty, the mortgagor in his answer to the rule nisi, sets up as cause why the rule absolute should not be granted, that a homestead has been set apart to him, as the head of a family, in the mortgaged premises, and the issue thus, raised is tried and found against him, he can not subsequently prevent the sale of the land, under the levy of the execution issued upon the judgment rendered in the foreclosure proceeding, by an affidavit of illegality wherein the sole ground for illegality is the alleged setting apart of such homestead in the land levied ■upon. Davis v. Myers, 41 Ga. 95 ; Harris v. Colquitt, 44 Ga. 663 ; Patterson v. Wallace, 47 Ga. 453. See, also, Robson v. Harris, 82 Ga. 153, 154 (7 S. E. 926) ; Smith v. Smith, 101 Ga. 296, 297 (28 S. E. 665) ; Durham v. Durham, 107 Ga. 285, 286 (33 S. E. 76).

Judgment affirmed.

All the Justices concur.