Kilgore v. Beck

40 Ga. 293 | Ga. | 1869

Brown, C. J.

This was a proceeding to have a homestead laid off to the head of a family, under section 2013 of the Code. .The applicant had filed a petition in the office of the Ordinary, praying that the homestead be laid off, and had accompanied it with a schedule of his property. This was done but a few days prior to the day of sale, and the survey had not been made and returned when tliQ land was sold by the sheriff for the debts of the head of the family. And it is argued that the homestead, under this section of the Code, must now be laid off, under the Act of 3d October, 1868, just as the homestead provided for by that Act is laid off, and that it is lost to the family if all the requirements of that Act have not been fully complied with prior to the sale of the land by the sheriff, that this Act repeals section 2018 of the Code, which is in these words: “ If, from any cause, the land exempt has. not been laid off when the remainder is offered for sale, notice being given of the fact, the purchaser will buy subject to the incumbrance.”

We do not think this section of the Code is repealed. It relates to the same subject-matter as is embraced in the Act of 1868, and being in pari materia, they must be construed together, and if they can be reconciled, both must stand. There seems to be no actual conflict between them. The Act of 1868 provides how the homestead shall be laid off. In this case the applicant was moving to have it done, but the sheriff proceeded to sell the property while the application was pending, and section 2018 of the Code says, in case it has not been laid off, the purchaser at the sheriff’s sale, with notice, takes the land subject to the incumbrance of the homestead. Why may they not stand together?

The purchaser at sheriff’s sale was moving to have the sheriff turn the family out of their home, and put him or his assignee in possession, when the Chancellor, on application to him by bill, granted an injunction to restrain him. But on the hearing,, after notice given of a motion for that purpose, he dissolved the injunction, and this decision is complained of. Under section 3153 of the Code, the Chancellor may restrain a trespasser if the injury is irreparable in damages, or the trespasser is insolvent, or there exists other circumstances, which, in the discretion of the Court, render the interposition of this writ necessary and proper. It is insisted, however, that the action of the sheriff in putting the purchased in possession would be only a trespass, admitting that the family still have the right to their home, and it is said the purchaser is perfectly able to respond in damages. This may be very true. But we think'it a trespass where those “other circumstances” exist, which make it proper for a Court of Equity to interfere by injunction. We can not say the remedy by action for damages would be as adequate in such case as by injunction. It is a little difficult to estimate correctly the damages which should be adjudged to a party whose wife and children have been illegally thrown out and expelled from their home. It is a proper case for the restraining power of a Court of Chancery, if they have a legal right to remain there.

There is some conflict in this case as to the fact whether the purchaser had notice at or before the sheriff’s sale, that the application for the laying off the homestead was then pending in the Court of Ordinary. In his answer the purchaser states that he had not seen the application, to the best of his recollection, but he does not state that he had no notice that it was pending. This will be a proper subject of inquiry on the trial.

So much for the rights of these parties. • Did the Court err in dissolving the injunction, and directing the sheriff to dispossess the family ?

On looking through this record, we are of opinion the Judge acted under the belief that the purchaser got a perfect title at the sheriff’s sale. If this were true, it was proper to dissolve - the injunction. But under our construction it may turn out on the trial that he did not. If not, it would be a great hardship to permit this family to be wrongfully turned out of house and home under color of legal process. In view of all the circumstances of this case, we think the Judge should have held up the injunction till the hearing.

Judgment reversed.