9 Ga. App. 1 | Ga. Ct. App. | 1911
Crowley & Co. caused the levy of a fi. fa. upon certain chattels as the property of Julia Freeman. She filed an affidavit of illegality, upon the ground that the note which-was the foundation of the judgment from which the fi. fa. issued was a forgery, and also upon the ground that there never was any such person or.partnership in existence as Crowley & Co. Prior to the trial she filed also a claim in her individual name, in which she asserted that the personal property which had been levied upon was exempt from levy and sale, under the Civil Code (1910), § 3416, and that she claimed this exemption; alleging, further, “that it is illegal to levy on and sell property that is exempt by virtue of the homestead law.” Fpon the hearing before the justice of the, peace the affidavit of illegality was dismissed, upon the ground that there was no bond .or pauper’s affidavit filed therewith. Counsel for the plaintiff in fi. fa. then moved to dismiss the homestead exemption claim, on the ground that there was pending a suit concerning the same subject-matter between the same parties at the time of the filing of the claim. The court'sustained this motion and dismissed the claim. The plaintiffs in fi. fa. did not file any plea in bar, in the nature of a plea in abatement, to the claim. The motion to dismiss upon the ground stated was merely oral. The claimant (conceding that the ruling of the justice of the peace upon the affidavit of illegality was correct), by writ of certiorari, presented to the superior court, for review, the judgment dismissing the claim, and upon the hearing the judge of the superior court sustained the certiorari, set aside the judgment dismissing the claim to the homestead exemption, and ordered that the claim case be set for trial in the justice’s court. Crowley & Go. except to the judgment sustaining the certiorari.
As to the insistence that the trial court should have dismissed the claim upon an oral motion, for the reason that at the time that the claimant interposed her claim there was pending an affidavit of illegality by which she sought to arrest the levy of the same fi. fa. upon the same goods as to which her claim was presented, we are of the opinion that, even if the rendition of the former judgment had afforded any reason for dismissing the claim, the plaintiff in fi. fa. should have filed in writing a plea in bar in the nature of a plea in abatement; but, even if such looseness of pleading' in a justice’s court be permissible as.to have enabled the plaintiffs in fi. fa. to attack the claim as they did by oral motion, still the judgment of the justice of the pea'ce in dismissing the claim for the
It may be said that in the Tucher case, supra, the proceeding was by possessory warrant, which affects only possession; whereas in claim eases there is necessarily an assertion of -title, and that this distinction creates an essential difference. ITe need not mark the distinction or discuss the difference, because in Gresham v. Johnson, 70 Ga. 632, in which the. proceeding was by claim, Justice Hall, in delivering the opinion of the court, said: “Our view of this ease is that the setting apart of á homestead, or the allowance of an exemption, does not alter or change, or in any manner affect, the title to the property exempted." It simply sets it apart to a particular, specified use, and to that extent imposes a charge or incumbrance upon the estate.” Tn another portion of the opinion he said that the effect of the previous holding of the Supreme Court in Hall v. Matthews, 68 Ga. 490, was to declare that the homestead did not divest the title of the owner, nor vest it in the beneficiáries.
The claim affidavit in the present case is not fatally defective. It appears upon its face to be a claim interposed by the head of a family for the purpose of asserting the exemption set apart to her as a quasi trustee for the beneficiaries. The statement that the property levied upon is exempt by virtue of a homestead is distinct and explicit. If it were necessary to amend so as to show in what capacity the 'affiant interposed the claim, the affidavit could be amended. But under the ruling in McDuffie v. Irvine, 91 Ga. 751 (17 S. E. 1029), no amendment is necessary, because it is expressly held that “in the nature of things the head of a family must represent the interests of the beneficiaries in all actions where the title to the exempted property is involved, and it makes no, difference whether he be described as the head of the family, or as trustee, or as agent, or simply designated by his own name. An action which seeks to subject exempted property to the payment of a debt stands upon' an entirely different footing from an action
We see no reason why Julia Freeman, if she proves that the property which has been levied upon is exempt under and by virtue of a homestead or exemption, may not prevent the sale by the interposition of a claim, in her own name. If she is the head of a family, she is the owner of the legal title.and the trustee of the usufruct which has been set apart to the beneficiaries. If she is a beneficiary, she can by claim assert the quasi equitable right of user or interest of herself and the other beneficiaries, as it is called by Judge Hall in Gresham v. Johnson, supra. The homestead property is an entity which, except in exceptional cases, must be kept intact as long as the exemption has a single beneficiary entitled to enjoy its benefits. The constituent parts of the property exempted can not be dismembered, nor any of it sold, except by order of a judge of the superior court. And therefore we see no reason (though this point is not here involved) why a claim may not be interposed by any beneficiary of a homestead as a means of preserving, the integrity of a trust estate for the benefit of all the beneficiaries.
So far as the questions involved in the present case are concerned, the decisions cited by counsel for the plaintiffs in error are not in point. The only matters decided in Pierce v. De Graffenried, 43 Ga. 392, are that a person who does not claim under the family could not by a claim assert title to or interest in the homestead property, and that a claimant cannot defeat a plaintiff in fi. fa. by showing the title in a third person not a party to the record where the defendant in fi. fa. was in possession at the time of the levy. In that case the plaintiffs in error, who claimed to be bastard children of a head'of a family to whom a homestead had been set apart, attempted to assert title to the land by reason of
In McWilliams v. Anderson, 68 Ga. 772, the Supreme Court held that the wife or the family might," without making the head of the family a party plaintiff', maintain an action of trespass against an officer for wrongful levy on homestead property in accordance with section 2027 of the Codex>f 1873 (Civil Code (1910), §.3399). Tf this section needed construing, the decision in the McWilliams case clearly, established the proposition that either the wife or the family, or the head of -the family, might separately bring an action for 'trespass upon the homestead, and that, if the action was brought
As to who are the proper parties to suits involving the protection ci homestead rights, and as to the distinction between suits involving legal title in its strict sense and suits involving" only the special use or right of possession, see Powell on Actions for Land, § IS. Judgment affirmed.