Mobley v. Belcher

144 Ga. 442 | Ga. | 1915

Lumpkin, J.

(After stating the foregoing facts.) The petition was rightly dismissed. The judgment was rendered against a firm of which William Mobley was a member, before he obtained a homestead. It included stated sums for principal, interest, and attorney’s fees. From this it may be inferred that it was based on a note or other promise to pay money. If so, it does not appear which member of the firm executed the promise, or whether it contained a waiver of homestead or not: If it did so, and William Mobley executed it, a homestead subsequently obtained by him was subject to the judgment. Perry v. Britt-Carson Shoe Co., 129 Ga. 560 (59 S. E. 216, 121 Am. St. R. 232); Winkles v. Simpson Grocery Co., 138 Ga. 482, 485 (75 S. E. 640). The head of the family had a right to interpose a claim to the levy, and a judgment on a claim interposed by him, finding the property subject, would bind the beneficiaries of the homestead. Wegman Piano Co. v. Irvine, 107 Ga. 65 (32 S. E. 898, 73 Am. St. R. 109). Whether the homestead was actually subject to the levy or not, that question was in litigation. It seems to have been a question of doubt. Indeed, the present petition does not show clearly that the homestead was not subject to the prior judgment. If an agreement to compromise such a case was made, whereby a part of the land was to be held subject and a part saved for the homestead, and if a verdict and judgment were taken accordingly, the judgment was binding on the beneficiaries. If it were voidable on account of fraud, the plaintiffs, having shown the judgment, should have alleged the fraud, and have proceeded to have the judgment set aside. They could not disregard the judgment or avoid its force, and recover the land, by merely alleging in general terms that the judgment and sale were void and operated as a fraud on their rights. Miller v. Butler, 121 Ga. 758 (3), (4), 761 (49 S. E. 754); Anderson v. Goodwin 125 Ga. 663 (8), 664 (54 S. E. 679). Something more than this is necessary to avoid a judgment as being procured by fraud. Though the verdict and judgment were based on an agreement, they were nevertheless a verdict and judgment of a court of competent jurisdiction, and were binding until avoided in some proper way.

Construing the verdict in the claim ease in the light of the pleadings and of the agreement of the parties, and giving to it a reasonable intendment, it was not void for uncertainty, although it omitted the word “subject” (which was the ground argued in the brief of counsel for the plaintiffs in error). Civil Code (1910), § 5927.

The plaintiffs must allege facts showing a right to recover. Having shown that the execution was older than the homestead, that a claim was interposed and a consent verdict and judgment rendered subjecting that part of the land now sought to be recovered, and that a sale took place accordingly, it was incumbent upon them to-show a right to disregard the judgment as void or to set it aside as voidable. They have done neither. In such a case not filing an affidavit under the Civil Code (1910), § 3400, did not render the verdict, judgment, and sale void. Nor are the cases relied on by-counsel for plaintiffs in error controlling here. The facts involved in them were different from those in the ease now before us.

Judgment affirmed.

All the Justices concur.