23 S.E.2d 697 | Ga. | 1942
1. Where an equitable petition shows that the petitioner is indebted to the defendant on a note that is not due, and that the note will be paid on maturity; this is not such debt as will require payment or tender before institution of the suit in equity, in order to prevent dismissal on demurrer.
2. Under the pleadings and the evidence the judge was authorized to find *156 that the plaintiff was entitled to an interlocutory injunction restraining the defendant from enforcing a judgment pending the plaintiff's application for homestead.
The judge passed an order restraining the defendants, their agents, and deputies from doing the things complained of in the petition, particularly from selling the land described. On the day set for hearing on the rule to show cause, Mrs. Grady Pass demurred to the petition, on the grounds that it sets forth no cause of action; and that it "fails to set forth any ground for equitable relief, and does not plead a tender sufficiently, and shows on its face the plaintiff has not done equity in the case." She answered, admitting the allegations as to residence and jurisdiction, the description and ownership of the land by the plaintiff, and the levy of the execution and advertisement for sale of the property.
Answering further, Mrs. Grady Pass said that the plaintiff executed and delivered to the Shadburn Banking Company a deed to secure the payment of the debt which was evidenced by a promissory note containing a homestead waiver, and that after having obtained a judgment against the plaintiff for $300 principal, with costs, and being unable to find any other property on which to levy the fi. fa., she tendered to the Shadburn Banking Company the amount of money ($75) necessary to pay off the indebtedness due to it by the plaintiff, and under the Code, § 39-201, had a deed made from the Shadburn Banking Company to the plaintiff, which was filed and recorded before the levy; that before she took up the debt from the Shadburn Banking Company she notified the plaintiff that she had applied to have said deed made in order that she might levy and sell the property under said execution in her favor. Mrs. Grady Pass neither admitted nor denied that the plaintiff had applied to the court of ordinary for a constitutional homestead, that the plaintiff was an aged and infirm person, or that she had asked the ordinary to have the county surveyor go on the land, survey it, and make a plat thereof. She denied the allegations that the land out of which plaintiff had applied for a homestead was located near Buford, and was the home place of the plaintiff and her husband, who had no property and who was unable to work, his only income being an old-age pension he received from the county, and that the property was worth $800, and unless a court of equity intervene the property would be sold, as stated, and *158 in all probability would bring less than the value placed upon it by the plaintiff.
The defendant also denied that plaintiff had no remedy at law. She answered, that the plaintiff knew that she had paid to the Shadburn Banking Company the amount due to it, and had a deed field and recorded; and that no tender was made to the defendant of the amount due before the filing of the petition, and no tender at all other than an offer of the principal by the plaintiff's attorney; that there was no offer to pay the costs of levy and advertising and the costs of court accruing up to the time the petition was filed; that the plaintiff, having stood by and seen the defendant incur the expense of paying to Shadburn Banking Company the amount due it, and of having a levy made, and the costs of advertising said property, and having waited until May 30 to present and file her petition to enjoin the sale, when the property had been advertised for sale on June 2, 1942, and having stood by with full knowledge of all the facts, and having failed to make any application to have a homestead assigned until May 28, 1942, after judgment had been rendered in January, 1942, the plaintiff was estopped from asserting her right of homestead as against the defendant, Mrs. Grady Pass; that under the Code the respondent was entitled to all the rights and privileges existing in favor of Shadburn Banking Company, and that she was entitled to have said property sold to satisfy the debt due the Shadburn Banking Company as against any right of homestead that existed in the plaintiff, since the plaintiff in writing expressly waived any right to a homestead exemption as against said debt; that the plaintiff contracted with the Shadburn Banking Company to pledge to it the property described in her petition, to secure the payment of the debt due to the Shadburn Banking Company, and that said pledge and security should be applicable to any other indebtedness or liability that the plaintiff might owe to the owner of the note, and that the defendant, Mrs. Grady Pass, was the owner of the note and became entitled to the benefit of the homestead waiver and the security afforded by said deed for all the indebtedness due by the plaintiff to her, and that the plaintiff was not entitled to prevent the sale of the property by homestead or otherwise, and that the relief sought by the plaintiff should be refused by the court, *159 and that defendant should be declared entitled to a judgment against the plaintiff for all costs incurred, etc.
Upon the hearing the plaintiff introduced her petition as an affidavit in evidence. Her counsel stated that he had offered to pay counsel for the defendant $75, the amount of the principal of the Shadburn Banking Company note, after the suit had been filed, but had not offered to pay any costs; and he stated that he did not know whether the offer was a continuing tender.
The defendant tendered in evidence her answer as an affidavit; also the note for $75, and the security deed. The note contained the usual homestead waiver, as well as a provision to the effect that the security deed should be made applicable to the payment of the note as well as to any other indebtedness or liability of the undersigned to the holder. The deed was in conformity with the Code, § 67-1301 et seq., and had the usual provision that it was made to secure the particular indebtedness or any other indebtedness.
It appeared that the note had been transferred and assigned by Shadburn Banking Company to Mrs. Grady Pass before the levy, and the Shadburn Banking Company had made a deed to the defendant in fi. fa., Mrs. Fannie L. Pass, at the instance of Mrs. Grady Pass.
The judge ordered: (1) That the demurrer be overruled. (2) That upon payment by the plaintiff of $108.85, including the amount paid by the defendant to Shadburn Banking Company, and cost to the clerk of the court, on or before 1 o'clock, p. m. June 27, 1942, a temporary restraining order be granted, and that upon payment of said sum the defendant be restrained from proceeding with levy and sale of the property until the final trial of the case.
Mrs. Fannie L. Pass paid the sum required by this order within the time specified, and it became effective. Mrs. Grady Pass excepted.
1. The first question for decision is, did the court err in overruling the demurrer? It is insisted, in the brief of counsel for the plaintiff in error, that the petition did not show on its face that the plaintiff, if entitled to a homestead, was entitled to such as against the execution which she sought to enjoin, because, first, it did not affirmatively appear that she had not *160
waived a homestead with reference to the judgment; and second, it was a proceeding in equity, and the plaintiff did not allege a tender before the time the suit was filed. The Code, § 37-104, declares: "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit." It has frequently been held that a plaintiff can not come into equity without first paying or tendering any amount admitted to be due. Bigham v. Chamlee,
2. The next question for decision is, did the facts of the instant case authorize the judge to enjoin enforcement of the judgment pending the plaintiff's application for homestead. The constitution, art. 9, sec. 1, par. 1 (Code, § 2-7201), declares: "There shall be exempt from levy and sale by virtue of any process whatever under the laws of this State, except as hereinafter excepted, of the property of every head of a family, or guardian, or trustee of a family of minor children, or every aged, or infirm person, or person having the care and support of dependent females of any age, who is not the head of a family, realty, or personalty, or both to the value in the aggregate of sixteen hundred dollars." Art. 9, sec. 2, par. 1 (Code, § 2-7301), declares: "No court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against the property *161
set apart for such purpose, including such improvements as may be made thereon from time to time, except for taxes, for the purchase money of the same, for labor done thereon, for material furnished therefor, or for the removal of incumbrances thereon." It is provided by statute: "Every person seeking the benefit of exemptions provided in the constitution shall apply by petition to the ordinary of the county in which he shall reside, or in which minor beneficiaries reside where the application is made for their benefit, stating for whom the exemption is claimed; if by the head of a family, stating the names and ages of members of the family; if by a guardian or trustee of a family of minor children, stating the names and ages of the minor children; if by or for any aged or infirm person, stating the age of the person and the character of the infirmity; and if by a person having the care and support of dependent females, stating the names and ages of the females, and how dependent; and stating out of what and whose property exemptions are claimed, and complying with all the requirements of the laws for setting apart and valuation of homesteads and exemptions." Code, § 51-201. It is further provided: "Any debtor may, except as to wearing apparel and $300 worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for by the constitution and laws of this State, by a waiver, either general or specific, in writing, simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness, or contemporaneously therewith or subsequently thereto in a separate paper." § 51-1101. In Allen
v. Pearce,
In Collier v. Simpson,
In Bennett v. Trust Company of Georgia,
In Ragan v. Taff,
In the instant case the note purchased by defendant contained a waiver of homestead exemption, but did not contain such an assignment of the homestead as referred to in the Pincus case supra. Applying the principles stated above, the homestead waiver contained in the note purchased by the defendant did not cause such waiver to become a part and effect of the judgment that the defendant was seeking to enforce. After the equitable proceeding was instituted, and after the court had acquired jurisdiction, the note containing a homestead waiver became due. The judge in seeking to do complete justice, which it was his duty to do under the Code, § 37-105 (Irons v. American National Bank,
Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.