97 Ga. 282 | Ga. | 1895
1. An admission that notes were executed and a mortgage given to secure a pre-existing usurious debt is not necessarily an admission that the notes and mortgage or any of them appeared on their face to be' usurious.
2. Unless the usury appeared on the face of the papers, it was too late for the debtor, after a judgment of foreclosure, to attack as being void, because of usury in the debt secured by the mortgage, a waiver of homestead duly made therein; and therefore a homestead applied for and set part after the judgment of foreclosure was not good against such a waiver. Cleghorn v. Greeson, 77 Ga. 343; McLaws v. Moore, 83 Ga. 177; Stewart v. Stisher, 83 Ga. 297; Barfield v. Jefferson, 84 Ga. 609.
3. There being nothing in the record affirmatively showing that the plaintiff’s waiver of homestead was invalid, the sheriff’s sale under the mortgage ft. fa. was valid, and divested the plaintiff of his title to the homestead property. Accordingly he was not entitled to recover, and there was no error upon the agreed statement of facts in directing a verdict for the defendants. Judgment affirmed.