Wheeler v. Redding

55 Ga. 87

• Court: Supreme Court of Georgia
• Decided: July 15, 1875
• Status: Published

Opinion

Bleckley, Judge.

The sheriff, on being ruled, answered with two excuses: First, he said that on the day of sale the defendant’s attorney produced the defendant’s petition in bankrupcy, (with adjudi-' cation thereon) in which the land levied upon was claimed as exempt under the bankrupt law, and that he was advised that he could not, therefore, proceed to sell; secondly, he said that the land had previously been set apart as a homestead by the ordinary, under the constitution of 1868.

1. This was final process, and the bankruptcy of the defendant made no difference, unless the sheriff had been stopped by affidavit of illegality, claim or injunction : 40 Georgia, 257.

2. The debt, as we understand the record, appeared on the face of the execution to have been older than the constitution of 1868. Therefore, the sheriff’s return, in order to protect him on the ground that the land had been set apart as a homestead by the ordinary, under the constitution, ought, at least, to have shown affirmatively that the quantity, if the land was in the country, or the value, if it was in town, did not exceed the exemption allowed by law prior to the adoption of the constitution. The sheriff admits by his return that he had property levied upon sufficient to satisfy the execution. He has shown no legal reason why he did not sell it.

Let the judgment be affirmed.