Hawks v. Hawks

46 Ga. 204 | Ga. | 1872

McCay, Judge.

We do not care to go into the question so elaborately argued at the hearing in this ease, to-wit: whether the note given by the two Hawks to the administrator was a novation of the purchase-money contracts, as it is clear to us that this land is subject to the mortgage^, fa. for another reason, even although the novation were complete. One of the exceptions in the homestead law is, it is true, where the debt on which the judgment is founded is a debt contracted for the purchase-money of the land; but another exception is where the judgment is founded on a debt contracted for the removal of an encumbrance from or upon the land. This judgment is founded upon a note, secured by mortgage, the object and consideration of which was to take up and relieve the land from a mortgage or encumbrance existing upon it at the time George Hawks bought it from his brother, to-wit: the mortgage made by the purchasers at the administrator’s sale.

We decided, in the case of Stephens vs. Kelly, 39 Georgia, 466, that a debt contracted to take up an execution existing as a lien superior at the time to the homestead was a debt contracted for the removal of an encumbrance, and that the homestead from which the encumbrance was removed was subject to it. This is a stronger case than that. George Hawks, when he bought this land, knew there was a mortgage upon it — an encumbrance that would defeat his homestead until it was removed. Pie joins in a new mortgage with his brother for the special purpose of removing it. Clearly, as it seems to us, this is within the very letter and spirit of the exception. The intent was to put it in the power of the owner of the land, either before or after the homestead was laid off, to change an encumbrance of one kind to an encumbrance of another, or to change the party to whom the encumbrance belonged.

It is said that the exception was put in to aid the operations of Loan and Building Associations, so that men of limited income might become members of such associations, borrow money and take up encumbrances that might exist on their property. The principle is the same in this case as in the cases of such borrowings. George Hawks preferred to give the present mortgage and remove the other. The other was a clear encumbrance, superior to his or his family’s claim to a homestead. It is within the very letter, as well as the spirit, of the exception.

Judgment affirmed.