167 Ga. 892 | Ga. | 1929
The controlling question is whether the waiver of homestead expressed in the statement by Weiner to Frank & Company is valid relatively to his present indebtedness. There was an indebtedness on the account of two thousand dollars at the date of the waiver. This was gradually discharged by the course of payments, which exceeded the amount of subsequent purchases. Consequently the present indebtedness represents debt incurred for purchase of goods after the alleged homestead waiver. In the Civil Code '(1910), § 3413, it is provided: “Any debtor may, except as to wearing apparel and three hundred dollars’ worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for by the constitution and laws of this State, by a waiver, either general or specific, in writing, simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness, or contemporaneously therewith or subsequently thereto in a separate paper.”
In Ragan v. Taff, 134 Ga. 835 (68 S. E. 579), it was held:
In Levinson v. Rosenheim Shoe Co., 143 Ga. 584 (85 S. E. 764), it was said: “The question involved was whether a waiver of homestead was a mere general waiver, disconnected from the creation of an indebtedness, so as to fall within the ruling in Ragan v. Taff, 134 Ga. 835 (68 S. E. 579), or whether the waiver was made in connection with the creation of the indebtedness and contemporaneously therewith, within a proper construction of that expression as used in the Civil Code (1910), § 3413, so as to fall within the ruling in Pincus v. Meinhard, 139 Ga. 365 (77 S. E. 82). That question was submitted to the jury, who found that the waiver was valid. The evidence authorized such a finding.” It can not be said in this case that the so-called waiver of homestead was contemporaneous with the contract of sale of the goods for the price of which it is sought to subject the property now claimed by the bankrupt as exempt. At the time of the financial statement made to Frank & Company there was no contract binding them to sell to Weiner. The waiver made at that time was valid as to the then indebtedness, but relatively to any future indebtedness which Weiner might incur upon a credit which Frank & Company might extend, but which they were not bound to extend, the waiver would not be contemporaneous with the creation of the debt within the meaning of the above-quoted code section, and would not be valid. It is urged that the language of the waiver in question was such as automatically to become operative as each subsequent purchase, should be made, and that in this view the element of contemporaneousness required by the statute was supplied. This view does not comport with the
Judgment affirmed.