62 Ga. 354 | Ga. | 1879
"When this case was here before, reported in 60 Ga., 114. it was sent back solely because the homestead papers were improperly admitted in evidence, and complainants’ case broke down on that point; this court holding that the certified copy of the plat of homestead from the office of the clerk of the superior court was.not primary evidence of the homestead, but that the original, which ought to be in the possession of complainants, must first be accounted for.
But the answer is that he purchased it as .homestead, which fact appears from the approval of the ordinary and the facts of the case as contained in the record. In such a case the defendant cannot attack the proceedings for irregularity, as decided in the case of Long vs. Bullard, 59 Ga., 355.
It will be observed that the bona fides of Brown in the purchase is vital to the case. If he used, or was cognizant of the use of fraud, or deceit, or duress, to induce Mrs. Driggers to sign the deed, he is not a bona fide purchaser ; if he was innocent of all participation in such duress, and ignorant of it all, he is a bona fide purchaser. If a bona fide purchaser, the constitution of 1877, article 9, section 8,
“ Eights which have become vested under previously existing laws shall not be affected by anything herein contained. In all cases- in which homesteads have been set apart under the constitution of 1868, and the laws made in pursuance thereof, and a tona fide sale of such property has-been subsequently made, and the full purchase price thereof has been paid, all right of exemption in such property by reason of its having been so set apart, shall cease in solar as it affects the right of the purchaser. In all such cases, where a part only of the purchase price has been paid, such transaction shall be governed by the laws now- of force in this state, in so far as they affect the rights of the purchaser, as though said property had not been set apart.”
This section means, we think, first, that homesteads set apart under the constitution of 1868, and still in the possession of the family and unsold, shall remain vested in the-family; secondly, homesteads sold under the laws made under the constitution of 1868 to a tona fide purchaser who-has paid full price for the property, are no longer exempted as homesteads so that the family can recover them, but the-title by virtue of the constitution of 1877 is assured to thetona fide purchaser, thus buying under the forms of law and paying full price; thirdly, where only part of the-purchase money has been paid by the purchaser of the homestead, equity will do in the case what equity would have-done had there been no homestead sold but only an ordinary unencumbered estate.
We do not see why the people of Georgia, in convention assembled to frame an organic law, had not the power to-make this law and put it in the fundamental law of the state. We know of no restriction upon the powers of such a convention except those imposed by the constitution of the United States; and we are not a-ware of any restriction, upon the states in that instrument which would debar them from ^making such an organic law. The power of the-legislature of a state to pass such an act is quite distinct.
It follows, therefore, that if Brown paid full price for this land (and about that there seems to be no question), ••and if he had no knowledge of the duress under which Mrs. Driggers is said to have acted, having been coerced by her husband to sign away her rights, and if the sale met the approval of the ordinary, (about which also there is no doubt, as the ordinary attested the deed to Brown and wrote it, and it had his full sanction), then article 9 and section 8 of the constitution of 1877, protects his title. Upon the question whether he had or had not knowledge of the duress of the wife, and thus whether he was or was not 'bona fide a purchaser, the jury found both ways, and thus made no verdict either general or special.
The constitution of 1877, it will be seen, requires of the purchaser two things before he can be protected ; first, that he has paid “the full purchase price,” and secondly, that he bought bona fide. The words bona fide, therefore, do not mean the payment of the full purchase money, but something else; otherwise the two things would not both have been mentioned — what is that something besides the payment of the full price of the land which the words bona fide mean ? Evidently, it is the absence of all knowledge of fraud, deceit, or coercion — in short of everything which would show bad faith. So that the jury must find •the truth on one single issue, and that is, did Brown so buy ■bona fide, being ignorant and innocent of any coercion of the husband exercised on the wife; if so, he is protected ; •if not, he is not.
Of course, the ordinary’s assent under the constitution of 1868 and the laws made thereunder was as necessary as the
On the whole case, we are of the opinion that the new trial should have been granted because the verdict is so contradictory and uncertain that no decree can be built upon it, so as to make one harmonious structure and present a symmetrical record — the decree following the verdict — as the law requires; and therefore we reverse the judgment which refused the new trial.
Judgment reversed.