108 Ga. 235 | Ga. | 1899
It appears from the record in this case that Cosnahan, in 1878, had a homestead set apart to him as the head of a family, for his wife and minor children, in certain lands in Burke county. The homestead papers appear never to have been recorded, and to have been lost. In 1883 Cosnahan executed to C. A. Rowland a note secured by a mortgage on this tract of land. The mortgagee transferred the note and mortgage, before due, to R. C. Rowland, administrator, who foreclosed the mortgage on the land. Execution was issued, and it was levied by the sheriff. Cosnahan, as head of a family, filed a claim in which he set up that the land had been set apart to him as a homestead prior to the execution of the mortgage, and was, therefore, not subject to levy and sale. It seems from the record that Cosnahan established the lost “homestead papers,” pending the trial of this claim case, but had not given to the plaintiff in fi. fa. any notice of his motion to establish the papers. On the trial of the claim case the jury returned a verdict finding the land subject, and the execution, by a judgment of the court, was ordered to proceed. Cosnahan made a motion for a new trial, which was overruled. He excepted, and brought the case to this court, where the judgment was affirmed, the court holding that the establishment of the lost papers was not binding upon the plaintiff in execution, as no notice was given him of the motion to establish, the latter being made pending the claim case. See Cosnahan v. Rowland, 99 Ga. 285. The land was sold under the fi. fa., and purchased by Johnston, the defendant in error here.
There were various exceptions taken in the record to the admission and exclusion of evidence, but the view we take of the-case renders it unnecessary to pass upon them. Cosnahan had in the claim case litigated with the mortgage creditor the identical question he now makes, and it was then decided that the land was subject to the mortgage fi. fa. The judgment of the-court in the claim case was excepted to by Cosnahan and brought to this court, where it -was affirmed. The land was-sold under the judgment and purchased by Johnston. When the land was first levied upon by virtue of the mortgage fi. fa., Cosnahan was not compelled to file a claim as the head of a-family to protect his homestead rights; but inasmuch as he did so and the title to the property was adjudicated to be in him as-an individual and therefore subject to the mortgage lien as against his claim of homestead, he is estopped to again litigate the same question in this action of ejectment. The court below decided that the homestead claims were not good as against, the lien of the mortgage, and that decision was affirmed by this court. It was Cosnahan’s fault that in the establishment-of the homestead papers he failed to give proper notice. He can not now, in our opinion, go through the form of re-establishing the papers and litigate the same question with the purchaser at the sheriff’s sale. He is concluded by the judgment, on every issue which he made or could have made in the claim-case. Judgments are conclusive between parties and their privies. In the case of Rival v. Gallagher, 52 Ga. 630, in dis
Judgment affirmed.