Posey v. Rome Oil & Fertilizer Co.
157 Ga. 44
Ga.
1923
Check Treatment

Lead Opinion

Hill, J.

(After stating the foregoing facts.) The bankruptcy act Of 1898, sec. 6 (Collier on Bankruptcy, 9th ed., 279), confers jurisdiction upon the courts of bankruptcy to set aside exemptiоns to bankrupts as may be claimed by them in conformity to the State laws on that subjéct, in force at the time of the filing of the peti-' tion. .See McGahan v. Anderson, 113 Fed. 115 (51 C. C. A. 92, 7 Am. Bkr. R. 641); In re Gerber, 186 Fed. 693 (108 C. C. A. 511, 26 Am. Bkr. R. 608); In re Baker, 182 Fed. 392 (104 C. C. A. 602, 24 Am. Bkr. R. 411). But the bankruptcy аct does not confer jurisdiction on courts of bankruptcy to set aside exemptions not in conformity with State laws. If the exemption ‍​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌‌‍so set aside is in conformity with thе State law, such exemption is no more subject to levy and sale than if it was set aside by courts of ordinary of this State. Brady v. Brady, 71 Ga. 71; Ross v. Worsham, 65 Ga. 624; Barrett v. Durham, 80 Ga. 336 (5 S. E. 102); Dozier v. Wilson, 84 Ga. 301 (10 S. E. 743); Evans v. Rounsaville, 115 Ga. 684 (42 S. E. 100); Pincus v. Meinhard, 139 Ga. 365(2), 372 (77 S. E. 82). In the instant ease the bankrupt in his original petition filed a schedule and claimed household and kitchen furniture of the value of $25, corn on hand of the value of $40, and cash $235, which was set apart by the trustee to thе bankrupt, who ■ later sought to amend his schedule, stating in substance that his original claim of cash was made through inadvertence, and that it was his intention to claim the “cоnstitutional unwaiver able homestead,” and prayed that the cash in the hands of the trustee be invested for him in one of the articles authorized by the Georgia law, to wit, corn, etc. It has been held by this court that that cannot be done; and therefore if it was attempted to be done, such effort would be a mere nullity. In Arnwine v. Beaver, 134 Ga. 377 (67 S. E. 937), this court held that “The property protected against the waiver of exemption, and as to which no waiver can be effectual, is wearing apparel, household ‍​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌‌‍and kitchen furniture, and provisions; consequently money, though less in amount than $300, and though it might readily be converted into any one of the *50classes of property mentiоned, as it does not belong to either of them, is not protected against the waiver.” In delivering the opinion in the Arnwine case, Mr. Justice Beck said: “In the Civil Code, § 2863, it is providеd that ‘Any debtor may, except as to wearing apparel and three hundred dollars’ worth of household and kitchen furniture, and provisions, waive or renounce his right tо 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 waivе or renounce such right, which waiver may be stated in the contract of indebtedness, or contemporaneously therewith, or subsequently thereto in a separate paper.’ Under this section of the -code any debtor is vested with the power to effectually waive the right to the benefit of exemption provided fоr by. the constitution and the laws of this State, except as to $300.00 worth of household and kitchen furniture, and provisions. A waiver under the provisions of this section affects all of his property of every description, except that which is specifically designated in the statute, — that is, wearing apparel, furniture, and provisions, to thе amount in value stated in the statute; ‍​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌‌‍and that waiver is binding upon the debtor whenever he seeks to obtain the benefit of exemption after having made the waiver in terms of the law. Where a valid contract of indebtedness embodies a waiver of the exemption provided for by the law, the debtor cannot afterwards assert a right of exemption of property not having the form of those species of property mentioned in the statute, and as to which there is placed by law a limitation upon his right to make the waiver. The onty property which is protected against the waiver of exemption, and as to which no waiver can be effectual, is such as may properly be classed as either wearing apparel, or household and kitchen furniture, or provisions. To enlarge this list so as to hold that the amount of money which is mentioned in the statute as a limitation upon the amount of wearing apparel, furniture, and provisions, that will be protected аgainst a waiver of exemption, would be an enlargement of the terms of the statute and an amplification of the protection against the waiver of еxemption as contemplated in the statute.” And see Butter v. Shiver, 79 Ga. 172 (4 S. E. 115); Cochran v. Survey, 88 Ga. 352 (14 S. E. 580); Wilson v. McMillan, 80 Ga. 733 (6 S. E. 182); Rosser v. Florence, 119 Ga. 250 (45 S. E. 975). In the Arnwine case, supra, it was *51further said: “The mere fact that the property which is claimed to be protected against the waiver of exemption may be easily and readily converted into property belonging to one of those classes specified in the section of the code referred to does not render the waiver any the less effectual as to it. If it were otherwise and it could be held that $300 in money were protected agаinst the waiver, it would require but one other step to hold that property like cotton, which can, with great facility, be converted into cash, would also be prоtected against the waiver so that it might be converted into money and then into provisions or'furniture. It is true that ‘concessions made by law to the poor are tо be construed liberally/ but such consideration does not authorize the importation of distinct terms into a statute by a court.”

But it is argued that the judgment of the lower cоurt in subjecting this money, ‍​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌‌‍which was converted by purchase into corn, to a homestead-waiver noté, in effect set aside the judgment of the court of bankruptcy, which authorized the purchase of the corn with the money first sought to be set aside as exempt. The answer to this contention is that even if the referee in bankruptcy passed such an order, as contended, the judgment would not be in conformity with the laws of this State, as pointed out above; and therefore that court would be without jurisdiction to рass such an order, and such order would be illegal. It will be observed that the order of the trial judge did not interfere with the exemption as set apart by the bankruptcy court, except as to the corn which was purchased with the money first sought to be exempted. The court merely ordered the receiver of the State court to sell the corn and out of the proceeds to pay first the cost of the proceeding and the balance to creditors in this cause pro rаta. We are of the opinion that the court in so holding ruled correctly and in conformity with the rule laid down in the Arnwine case, and others cited to the same effect. It cannot be held that cotton is “provisions” as provided by art. 9, sec. 3, par. 1, of the constitution of this State (Civil Code of 1910, § 6584), which provides that “The debtor shall have power to waive or renounce ‍​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌​​‌‌‌‌​​‌​​‌​​​​‌‌​‌​‌‌‍in writing his right to the benefit of the exemption provided for in this article, except as to wearing apparel, and not exceeding $300 worth of household and kitchen furniture, and provisions, to be selected by himself and his wife, if any;” etc. Butler v. Shiver, supra.

*52We are therefore of the opinion that the court below did not err in passing the order complained of in the bill of exceptions in this ease. Judgment affirmed.

All the Justices concur.



Rehearing

ON MOTION ROE REHEARING.

Cash can not be set aside as a homestead exemption. When а debtor applies for a homestead, and he is possessed of cash, it is competent for the ordinary to order the cash invested in property, and thеn set aside the property as a homestead exemption. Civil Code (1910), § 3391. This section does not deal with, and does not affect, the rights of creditors under homestead exemptions. When the debtor waives his homestead rights he cannot thereafter assert his homestead against such waiver, except in the case wherеin the constitution declares that certain articles cannot be waived by the debtor. When the debtor waives his homestead he vests his creditor with the right to subject all his property to the payment of his debt, except the articles specified in the constitution, viz., wearing apparel and not exceeding three hundred dоllars’ worth of household and kitchen furniture and provisions. If his property consists of other articles, his waiver of homestead subjects all such articles to the pаyment of his debt created by his obligation waiving the homestead. He cannot defeat this right of the creditor under his waiver by having articles sold and the proceeds invested in articles which are not subject to waiver; nor can he have cash, which would be liable under such waiver, converted into articles not subject to the waiver. Motion for rehearing denied.