114 Ga. 199 | Ga. | 1901
The petition of the Simpson Grocery Company alleged that a stock of goods and merchandise had been set apart as an exemption to D. R. Mitchell as the head of a family consisting of his wife and minor child; that Mitchell continued to carry on a mercantile business with the exempted property, and that petitioner sold and delivered to him goods and merchandise of a specified amount, which were taken possession of by Mitchell and intermingled with the goods set apart as exempt; that the goods so sold and delivered to Mitchell were necessary and proper to the conduct of the business which he was carrying on; that the same were appropriated and used as a part of the exempted stock and for the benefit of the beneficiaries of the exemption, who were maintained and supported by the business thus carried on. The prayer of the petition was that the plaintiff might have a judgment against D. R. Mitchell as the head of a family and against his wife and daughter, the beneficiaries of the exemption, for the debt, “to be levied especially on said stock of goods, or any additions'thereto, and upon any and all other property so set aside or claimed as exempt.” By an amendment to the petition it was alleged that there were set apart as exempt, at the same time that the stock of goods was set apart, certain articles of personal property consisting of horses, vehicles, and household furniture. The defendant, D. R. Mitchell, an
Property set apart as exempt under the laws of this State can not be lawfully sold except for the purpose of paying debts of the character specified in the constitution, if the exemption is set apart under the constitution, or debts of the character specified in the statutes, if it is a statutory exemption. It is true that it has been repeatedly held by this court that the interest of beneficiaries in property set apart as a homestead or exemption is in the nature of a trust estate created for their benefit, and that such property may be condemned to the payment of debts to which it is legally liable in the same manner that property of other trust estates may be subjected to the payment of debts. But no matter how regular may be the pleadings and proceedings in a case seeking to subject a trust estate of any character to the payment of a debt, if the proper defense is interposed at the proper time, no lawful judgment can be rendered condemning the trust estate to the payment of the debt, unless the debt belongs to the class which the law declares the trust estate may be brought to sale.to pay. This is equally true of proceedings to condemn an exempted estate to the payment of a debt. In the present case the pleadings of the plaintiff seem to be in the form required by law in cases ofcan effort to subject a trust estate to the payment of a debt, and the necessary parties appear to have been made by the pleadings, but the debt upon which the plain
Moreover, a careful examination of the record will disclose that there is really in existence now no exempted property. The judgment entered is in the nature of a judgment quando against the exempted estate, which, to say the least of it, is a character of judgment never before heard of in such a case, so far as we are aware. If the exempted estate has been consumed or dissipated, the judgment of course has nothing now to operate on. Under such circumstances nothing can ever- come into the exempted estate again, and upon what a judgment quando could operate it is impossible to imagine, even if it is legally possible in any case to enter such a judgment in a suit against an exempted estate. In Powers v. Rosenblatt, 113 Ga. 559, it was held that when a stock of goods had been set apart as exempt, and the head of the family had continued the business, he was not and could not be a trader within the meaning of the insolvent trader’s act, now embodied in the Civil Code, §§ 2716-2722, so as to authorize a court of equity to seize and ad
Judgment reversed.