Larence v. Evans

| Ga. | Jul 15, 1873

McCay, Judge.

It is alleged in this bill, and the demurrer admits it to be true, that the property in dispute is not worth more than $500 00. As it is situated in a town, it is not, therefore, of any greater value than was exempt from levy and sale at the time the debt, now seeking to condemn it, was contracted: Code of 1873, section 2040; Act of 1845, Cobb, 391. In my judgment, if this be so, it does not affect the question that it was laid off, under the Act of 1868. It is not over the law, but over its operation, that the jurisdiction of the Federal Court extends, and if, under the Act of 1868, one gets a homestead, no greater than he would have got, under the law, as it stood when the debt was contracted, there is no conflict between what the law has given him and the Constitution of the United States. But in this case, the party has taken an exemption under the Act of 1845, and in accordance with its provisions. It seems to us absurd to say, that, as he has acted under the Act of 1868, he cannot act under the law of 1845, if his act under the law of 1868 was void. If it was so void, then it is as though he had not acted at all. If the judgment of the Ordinary was void, the matter stands, as to this debt, exactly as if no such judgment was had.

We are, therefore, all of the opinion that this second application and the proceedings under it were legitimate and proper. That it was not recorded, ought not, in favor of these executions, to affect the question. They have lost nothing by the failure, since whatever rights they had were acquired before the application was made. What may be the rights of the person to whom the homestead was sold, is nothing to the plaintiff in execution. The complainant in the bill is in possession and she says that was no sale, but a mortgage, and by permitting her to keep possession the nominal grantee in that deed, prima facie, admits it. Altogether, we think there is enough in this case, as it stands, to justify and require an injunction, at least till a hearing can be had.

Judgment affirmed.