Timothy v. Chambers, 85 Ga. 267

Timothy v. Chambers

85 Ga. 267 | Ga. | 1890

Bleckley, Chief Justice.

1. The plea that the defendant Elliott had purchased the premises, paid their full value, and that the amount thus paid had been enjoyed by the beneficiaries of the homestead, was not restricted to the mesne profits, but was set up as a defence to the whole action. The homestead provided for by the constitution of 1868, was unlike the exemption which the constitution of 1877 provides for. The former embraced realty as such, and personalty as such; whereas, the latter may *272as to the whole value exempted, cover one or the other or both, indifferently. In the scheme of the former, money paid for land unlawfully sold would not take the place of the land, — certainly not unless invested in ■land and still held in that form. But money would pay rent, and we think it might be set off against mesne profits of the homestead land, if the family got the benefit of the money paid by Elliott as purchase money. Though the plea was properly stricken because it sought to bar the action instead of merely resisting the collection of mesne profits, we direct that the recovery of mesne profits be opened, if the defendants shall, when the remittitur is returned and entered, plead this matter as against mesne profits alone. If they fail to do this promptly, this direction will count for nothing. Of course, they must prove, as well as plead, in order to make the set-off effectual.

2. The plea which sought to estop the wife by her deed and warranty was no defence as against her interest in the homestead. She may be liable upon the warranty, but if so, her liability thereon could not be enforced directly or indirectly against her homestead interest. Nothing of the sort was attempted in Amos v. Cosby, 74 Ga. 793. In that case, the action was on the warranty itself, the breach of which consisted in not protecting the land against incumbrances superior to the homestead right. No point was made on the validity of the sale and conveyance of the homestead property. Here the point is made, and surely the wife’s warranty that she, in connection with her husband, had the right to sell, would neither create the right nor bar her from denying its existence. If it would, the whole scheme of our law in restraining and regulating the sale of homestead and exempt property would be broken up.

3, 4, 5. The head-notes complete the opinion.

Judgment affirmed, with direction.