Lathrop v. Soldiers' Loan & Building Ass'n

45 Ga. 483 | Ga. | 1872

Warner, Chief Justice.

An application was made to the Ordinary of Richmond county by J. J. Lathrop and S. J. Lathrop, his wife, as head of a family, for a homestead exemption out of the value of a city lot in the city of Augusta, under the provisions of the 7th section of the Homestead Act of 1868. The Ordinary allowed the homestead, and the Soldiers' Loan and Building Association, a mortgage creditor of the applicants, excepted to the judgment of the Ordinary allowing the homestead, on the ground that the applicants were not entitled to the homestead exemption prayed for under the law applicable to the facts of the case. The exceptions were overruled by the Ordinary, and the mortgage creditor applied for and obtained a certiorari and brought the case before the Superior Court. On the hearing in the Superior Court, a motion was made to dismiss the certiorari, on the ground that the creditor’s remedy was by an appeal to the Superior Court and that a certiorari would not lie to correct errors of law in the judgment of the Ordinary, which motion was overruled, and the defendants excepted. On hearing the certiorari, the Court sustained the same and set aside the judgment of the Ordinary allowing the homestead, and defendants excepted. There was no error in overruling the motion to dismiss the certiorari. If the jurisdiction of the Superior Court to correct errors in inferior jurisdictions by writ of certiorari, as conferred by the Constitution, was ousted by the provision for an appeal under the sixth section of the Act, (which we do not concede,) it certainly is not in relation to proceedings had under the seventh section. It appears from the evidence in the record that the city lot is the separate property of Mrs. Lathrop, that she has no children, but her husband has children by a former marriage. She is under no legal or moral obligation to support his children. She was not the head of a family of the minor children of her husband within the meaning of the first section of the Act of 1868, and her husband and his children had no title to the property.

It appears from the record, that on the 16th day of February, 1866, Mrs. Lathrop mortgaged the city lot to the Soldiers’ Loan and Building Association as her separate property, to secure the loan to her of the sum of $8,000 and interest thereon. It also appears that she made an affidavit on the back of said mortgage, before a Notary Public, (who examined her separate and apart from her husband) that the mortgage was executed by her free will and consent, and that the mortgage money was to be used for the payment of the money due on the purchase of the property, to John H. Myer, Esq. It also appears from the evidence in the record that the money was loaned to her on the faith of her sworn statement on the back of the mortgage.

In our judgment, Mrs. Lathrop is estopped from controverting the facts stated in her affidavit, and to allow her to claim a homestead exemption under the seventh section of the Act, as against the mortgagee, would be, to speak in the mildest terms, a legal fraud. We find no error in the judgment of the Superior Court in sustaining the certiorari, upon the facts disclosed in this record.

Let the judgment of the Court below be affirmed.