84 Ga. 203 | Ga. | 1890
It appears from the record in this case that on November 30th, 1887, the ordinary of Eloyd county set apart to Bones, trustee and head of a family, an exemption in 'certain town propei’ty known as the
The case was submitted to the trial judge without the intervention of a jury. It was admitted that an exemption had been set apart for Bones, trustee; and it was further admitted that the property had been sold by the sheriff. The mortgage by Bones, trustee under the will of his wife, was introduced in evidence. It recited that Bones, trustee, had that day borrowed from McWilliams $4,000.00, for the purpose of paying oft certain incumbrances upon the property mortgaged, and to make certain improvements thereon; and that Bones, as such trustee, had given his note, payable to McWilliams or order, for $4,000.00, the note bearing even date with the mortgage, and due twelve months after date, with interest at the rate of 8 per cent, per annum, payable semi-annually; and that in order to secure the payment of said note and interest, Bones, as such trustee, and hy virtue of‘ the authority vested in him by the will of his wife, mortgaged certain realty, being the property sold by the sheriff. The record shows that prior to this mortgage, Bones had given two other mortgages on the mill property, one to Joel Branham, and one to Mrs. Branham, each to secure two $500.00 notes, given for a balance of purchase money for one-half interest in the mill, due one and two years from January 12, 1884. These notes all became the property of Branham, who transferred them to his son-in-law, Penniston. The first two falling due were paid by Bones before he obtained the loans from McWilliams; and the last two, amounting to $1,000.00, were paid after that loan, and out of-the McWilliams money. One Berry was also paid out of said money borrowed from McWilliams $668.50 to take up a mortgage given upon the same property by E. B. Smith before Bones, trustee, bought said property, and this mortgage con
On this state of facts, the court rendered judgment awarding $1,600.00 of the money in the hands of the sheriff to the ordinary, to the exclusion of the mortgage to McWilliams. McWilliams excepted to this decision : (1) Because said mortgage debt of McWilliams is superior to the homestead, said mortgage having been given for the purpose of raising money to pay off' certain incumbrances upon the property, the proceeds of which property is the money before the court; and said mortgage also being given to make certain permanent improvements upon the property, the proceeds of which property were before the court for distribution. (2) Because said mortgage debt due to McWilliams is superior to the homestead, for the reason that said money was borrowed upon the faith and belief, and with the understanding and agreement, expressly stated and acted upon, that a great part thereof, to wit, $2,000, would be used in making permanent improvements upon the property mortgaged; that said Bones, trustee, is es-topped by deed and good conscience from denying that the money was not so used. (3) Because the full $1,600.00 should not have been allowed from the $3,200.00 in the hands of the sheriff, for the reason that the debts paid by the money borrowed were superior to the homestead, the one being paid for the removal of an incumbrance upon the property which was given to secure a purchase money debt, to wit, the amount applied to relieve the Branham debt of $1,000, besides interest, and the E. R. Smith debt of $668.50, which was also superior to the homestead, the same being a debt waiving the homestead.
1. Counsel for plaintiff in error insisted that the
2. We think, however, that the court erred in awarding the $1,600.00 to the applicant for the exemption in this case, under the facts as disclosed by this record. It will he remembered that the money borrowed by Bones from McWilliams went to pay off' $1,000.00 to Bran-ham, or his son-in-law, Penniston, which was for the purchase money of the property, and secured by mortgage, and that $668.50, besides interest, went to pay off Berry’s claim, who had a mortgage upon the property with a waiver of homestead. The property did not bring a sufficient amount at the sheriff’s sale to allow the full $1,600.00 to Bones as an exemption, and to pay off the Branham note and mortgage and the Berry mortgage. The scheme of our law is that before a person can claim an exemption in property, the purchase money therefor must be paid. This note of Branham’s being for the purchase money, and the money boi’rowed by Bones from McWilliams having been used in paying off this purchase money, McWilliams stood in the place of Branham, or Penniston, his son-in-law, and was entitled to be paid the amount of the Branham debt before Bones could be allowed an exemption. Berry having a mortgage in which there was a waiver of homestead, and McWilliams’ money having been expended in paying off and discharging this mortgage, McWilliams stood in Berry’s place, and the amount of the principal and interest of the Berry mortgage should have been awarded to McWilliams instead of Bones. But it is
8. It was also insisted by counsel for the defendant in error that because the money advanced by McWilliams to remove from the property the incumbrances thereon of the other mortgagees,'was obtained by a contract infected with usury, the right of McWilliams to stand in the place of the other mortgagees as to the money required to remove these incumbrances would not exist. In other words, that although it might be that the holders of the two mortgages, one of them for the purchase money and one waiving homestead, might stand superior to the homestead claim, yet as usury in a mortgage defeats a waiver of homestead in the same mortgage, and there being usury in the mortgage to McWilliams, he can take no benefit from the high character of the incumbrances to remove which his money was used. We do not agree with this contention, for McWilliams is not relying upon any waiver in his own mortgage, hut upon his equitable rights resulting from the application of his money to discharge mortgages which were not infected, and the discharge of which was requisite in order for Bones to have a homestead at all which would he free from incumbrances. The same principle is involved which was recognized in Bugg v. Russell, 75 Ga. 837, and we think that case controls the question in the present case.
For these reasons, and perhaps for others which might be mentioned, the court should have awarded judgment in favor of McWilliams for the whole amount of the Branham debt, principal and interest, and also principal and interest of the Berry debt, in pieference to the exemption claimed by Bones.
Judgment reversed,.