134 Ga. 835 | Ga. | 1910
Lead Opinion
(After stating the foregoing facts.) The constitutional and statutory rights of homestead and exemption are intended to reserve to a debtor, for a limited time, the use and enjoyment of a certain amount of his property from the processes of his creditors. It may not be necessary that an applicant for a homestead be a debtor; yet, as the homestead exemption only serves as a barrier against creditors, it is hardly supposable that one who does not owe any debt will ever apply for an exemption or homestead'in his property. In making provision for notice to creditors, both the constitution and statutes contemplate that the applicant is in debt, and is seeking protection from his creditors. Under the constitution of 1868 the debtor could make a special waiver, but was not allowed to defeat his right of homestead by a general waiver. A general waiver was pronounced void as being opposed to public policy, in Stafford v. Elliott, 59 Ga. 837. The constitution of 1877 (Civil Code, § 5914) declares that “the debtor shall have power to waive or renounce in writing his right to the benefit-of the exemption provided for,” except $300 of household and kitchen furniture and provisions. It is further provided in this constitution (Civil Code, § 5916) that the “debtor” shall have au
Judgment affirmed.
Dissenting Opinion
dissenting. Taff & Conyers made to Eagan, Malone & Companj'- a statement of their financial condition, wherein it was stipulated, according to the proper construction of the statement, that they waived and renounced any and all homestead and exemption rights as to any debt they might create in favor of Eagan, Malone & Co., by reason of the latter extending credit to-them on the faith of such statement. Eagan, Malone & Co. after-wards extended credit to Taff & Conyers on the faith of such statement, and the waiver in the statement was valid as against the debt thus created. It is true that the relation of debtor and creditor did not exist between the parties until Eagan, Malone & Co. sold the goods to Taff & Coders. When the goods were sold on the faith of the’ statement, the stipulations therein became a part of the contract; and as far as the agreement therein waiving all homestead and exemption rights was concerned, it had the same effect as if it were made at the time the goods were sold and the contract creating the indebtedness was made. ’ Such agreement waiving homestead and. exemption rights became a part of the contract whereby Taff & Conyers became a debtor of Eagan, Malone & Co. by reason of the latter selling the former on the faith of the statement, and the waiver was binding. I can not concur in the views of the majority of the court, and must dissent therefrom.