116 Ga. 298 | Ga. | 1902
Walden as head of a family sought to enjoin the. Brantley Company from selling a house and lot in the city of Way-cross. By his petition he made substantially the following case: In March, 1877, he had set apart to him, as the head of a family, a homestead of realty and personalty, the realty being a certain place whereon he then resided. Thereafter, in 1881, under an order granted by the judge of the superior court the realty and some of the personalty exempted were sold, and the proceeds were reinvested in a house and lot on Albany avenue in the city of Waycross. In 1899 that property was exchanged for the house and lot situated on the northwest corner of Isabella and Remshart streets in the same city. He removed his family there, and that has been their home continuously to this day. This last-named property was purchased with the proceeds of the homestead which had been regularly set apart to him. The deed conveying this property to petitioner was made by A. L. Johnson. It conveyed the land directly to petitioner, and was duly witnessed and recorded. In the
The defendant answered, setting up the fact that petitioner and his brother had borrowed $500 from it, and had executed a mortgage to secure this sum, together with certain promissory notes which it held against the firm of C. E. and C. T. Walden. It denied that the realty described in the mortgage was obtained by the proceeds of a sale of a homestead, but averred that it was the property of the petitioner, and was his property at the time of the execution and delivery of the mortgage ; but alleged that if the proceeds of any homestead were invested in this property, it had no notice or knowledge of any such fact at the time, and that it in good faith and for value accepted the notes of C. E. and C. T. Walden, and the mortgage given to secure them. The defendant further answered that, before the execution of the mortgage, it held a note signed by C. E. and C. T. Walden, payable to Guthrie, for $750, and that at the time of the maturity of the same it was not
At the hearing it was shown that in April, 1899, A. L. Johnson, in consideration of $500, conveyed to Charles E. Walden the house and lot in the city of Waycross on the corner of Isabella and Remshart streets. The petitioner, after testifying that he was the head of a family, and that the house and lot had been purchased by the proceeds of the homestead which had been set apart to him, further said that before the execution of the mortgage he told Mr. A. P. Brantley, the chief officer of the defendant company, that while there was no mortgage or lien against the property, yet he had obtained a homestead for his family several years ago, and that the proceeds of that homestead was his Waycross home, on which he was about to execute this lien. He further said that when the original homestead property was sold and reinvested in a home on Albany avenue, he did not obtain from the owner any deed to that place, up to the time he made an exchange of the property on Albany avenue for the property, on Remshart street, and when he exchanged the property on Albany avenue for bis present home he had the original owner to execute titles to the same to A. L. Johnson, and that Johnson in turn executed to plaintiff title to the property on Isabella and Remshart streets. C. T. Walden also testified that, before tbe mortgage to the Brantley Company was executed, he had heard his brother, the petitioner, tell A. P. Brantley, of the Brantley Company, that the property he
1. The only question which arises in this case is, whether the trial judge erred in refusing to grant the injunction. It is not contested that at the time of the execution of the mortgage C. E. Walden held a deed to the lot which he had mortgaged, and that Johnson, the previous owner, had executed title to him individually. It has been repeatedly ruled by this court that property purchased with the proceeds of a homestead is as much exempt from levy and sale as the original property set apart as a homestead would be. In the case of Johnson v. Redwine, 105 Ga. 449, it was also ruled that one who takes a mortgage upon land purchased with the proceeds of exempted property, and who knows, or is chargeable with notice, that such was the fact, acquires his lien subject to the exemption rights. On the other hand, the rule that a mortgagee, to the extent of his interest in the land mortgaged, stands upon the same footing as any other bona fide purchaser without notice, has been repeatedly recognized (Lane v. Partee, 41 Ga. 202; Broome v. Davis, 87 Ga. 584); and an’ innocent purchaser of land) for value and without notice, is protected against any secret equity which another has in such land. So that, assuming that the house and lot in question was purchased with the proceeds, of a homestead regularly set apart, yet if, at the time of the execution of the mortgage, the Brantley Company did not have and were not chargeable with notice of such fact, and in good faith advanced money to Walden on the security of a lien on the property, title to which then stood in his name, it took a lien superior to the claim of the homestead thereon. On the contrary, if the company had such notice, or was. chargeable with the same, the lien which it took was subject to the homestead right.
3. The ruling made in the case of Broome v. Davis, supra, is in ■no sense in conflict with anything which we have herein laid
The trial judge did not, in our opinion, commit any error in refusing to grant the injunction.
Judgment affirmed.