Rogers v. Hawkins, No. 37

No. 37 | Ga. | Jun 15, 1856

By the Court.

Lumpkin J.

delivering the opinion..

[1.] By a careful examination of the several Statutes; passed in this State for the purpose of exempting a certain quantity of real estate, belonging to insolvent debtors, from levy and sale, it is clear that this case is not embraced within-the provisions of any of them.

By the Act of 1841, (Cobb, 389,) twenty acres for the-head of the family and five acres for each of the children. Hnder-'fifteen--years 'of age, were exempt. And the same to - be laid off by the County Surveyor, and were to embrace the dwelling-house and improvements, provided these did not exceed in value $200, to be ascertained and certified by three - valuing agents: one to be appointed by the plaintiff in execution, one by the defendant, and one by a Justice of the Peace in the district where the said dwelling-house and improvements are.

By the Act of 1843, fifty acres are exempt, except for the purchase money. (Cobb, 390.) And by the Act of ' 1845, the benefits of the foregoing Acts are extended to the • citizens of any city, town or village in the State ; and to include real property in such places, not exceeding in value • $200. (Cobb, 391.)

But neither this last Act, according to its letter, nor any other, in spirit, extend to a place in the country like the • present, containing loss than fifty acres; and yet, deriving;, its chief value, probably, from its location.

The decision of the Court was based: upon the Act of 1841. (But taking that Act in connection with the Act „of 1843, which is amendatory of it, and is it not .apparent that they •both apply to cases only where the whole tract is more than fifty acres ? In such case only is it necessary for the County Surveyor to lay off and admeasure the fifty acres; and in such case only is it necessary for the defendant to furnish the Sheriff or other levying officer with a plat or boundary of the fifty acres so laid off. But in the case before us, the ■'•whole tract consists of less than ton acres. Of course the Acts of 1841 and 1843 do not apply.' • ■

Could the Sheriff levy at all upon a tract of less than fifty ■acres, belonging to an insolvent debtor ? Whether he could or could not, we think it clear that the offer made by the defendant to prove that the land and improvements were not ■■worth more than two hundred dollars, was all that the creditor could claim. Suppose the valuation exceeded that sum, would not the creditor get the excess,, just' as though the .property was located in a town. If it ivas not worth that amount could it be sold, and ought it to be sold, under any just construction of these Statutes ?