138 Ga. 482 | Ga. | 1912
The claim was filed by S. J. Winkles as the head of a family, by virtue of an exemption set apart to him by the TJnited States court of bankruptcy. The record discloses substantially the following: The Thompson-Iiiles Company brought suit against S. J. Winkles & Co., a firm composed of S. J. Winkles and Mrs. M. E. Moore, on a promissory note containing a waiver of homestead. The note was ostensibly signed by S. J. Winkles & Co. This latter firm conducted a retail mercantile business in Cedar-town. Mr. Tom Moore, the husband of Mrs. M. E. Moore, one of the members of the firm of Winkles & Co., was an employee of
The evidence shows that Mr. Moore, who signed the notes as manager for the firm of S. J. Winkles & Co., was not, a member of that firm, but simply represented as agent the partnership of which his wife was a member. He could not waive the homestead in realty belonging to an individual member of the firm, in a note executed for a partnership debt, without express authority to do so by those competent to confer that authority. It has been held in this State that “the right to homestead or exemption is personal to the debtor, the owner of the property, and its exercise, or non-exercise, is subject to his decision.” Broach v. Powell, 79 Ga. 81 (3 S. E. 763). One partner may waive the right of homestead of the other partner, so far, at least, as personal property of the firm is concerned. Hahn v. Allen, supra. One partner can not waive the right of another partner to the benefit of a homestead out of the
Judgment reversed.