177 Ga. 564 | Ga. | 1933
On or about October 20, 1931, C. Y. Wright, while owning a vacant lot subject to an outstanding security deed in favor of J. E. Mayes for part of the purchase-money of the lot, contracted with W. S. King and J. P. Hinson to erect a dwelling house thereon at a price of $2025, the contractors to furnish all material and labor. In the construction of the house the contractors purchased material from the Carolina Portland Cement Company, which company on December 12, 1931, duly recorded its claim of lien against King and Hinson and against the property improved, for $1079.47. King and Hinson, on December 21, 1931, caused to be recorded their claim of lien for balance due of $1658 on the contract with Wright. On November 28, 1931, Wright executed to Dr. W. T. Eogers a note for $1000, due on demand.
The objections filed by the Carolina Portland Cement Company to the allowance of the homestead were: (a) That the alleged order of the court of ordinary, purporting to set aside the sum of $500 as a short homestead under section 3416 of the Code, is illegal and void, for the reason that there is no provision of law allowing the exemption of cash under said statute, (b) That the plaintiff in error would be entitled to no part of- the funds, for the reason that the whole thereof was liable to liens for purchase-money (the labor and material used in the construction of the house), and therefore superior to the homestead claimed, (c) That at the time Wright contracted for the erection of the house he held title to the property subject to a deed to secure debt executed by him to secure a series of notes given as a part of the purchase-money, each of which notes contained a waiver of all homestead rights. After the commencement of this proceeding, the receiver, acting under orders of the court, borrowed from one Lynch $694.65, which amount was actually used in paying off said purchase-money notes. The receiver executed his note for the amount so borrowed, and to secure the same executed to said Lynch a deed to the property, which note and deed were subsequently acquired by the Carolina Portland Cement Company. In her intervention the plaintiff in error admitted that the amount due on the note so acquired was superior to the homestead claimed by her, and she asserted her homestead claim only against the remainder of the funds in the hands of the receiver, $905.35. The Carolina Portland Cement Company contended that “in equity and good conscience between
The amount left in the hands of the receiver after payment of the balance of the purchase-price of the lot amounted to only $905.35, which was less than the claim of the materialman, the Carolina Portland Cement Company, which furnished this material to the actual contractors, King and Hinson. The court refused to grant the statutory pony homestead, and thereupon Mj;s. Wright sued out the present writ of error, but no other party in the cause has taken exceptions to the findings which may presumably be adverse to them. The applicant for the pony homestead concedes that the unpaid purchase-price of the land upon which the house was constructed was properly given the first lien upon the funds. Since none of the other parties are excepting, it is readily to be seen that the single issue presented by this extremely voluminous record is whether a materialman’s lien for lumber, etc., is in the nature of purchase-money, so as to defeat the right given the applicant by the Code, § 3420, under the undisputed facts of this case.
After diligent search, we have been unable to find a decision of this court to the effect that a lien can be impressed upon homestead property for services or improvements made before any homestead was ever granted. As pointed out by Justice Jackson in Dickens v. Thrasher, 58 Ga. 360, the purpose of binding a home
One of the arguments advanced by the Carolina Portland Cement
We do not overlook the rule which requires one who has two means -of access to a specific fund to elect which to pursue if either is sufficient to pay his demand, and is confined to the one fund if a rival claimant has a claim or demand upon only one fund, but we fail to comprehend any theory upon which, because a certain creditor has a claim upon two funds, he may exhaust both regardless-of superior priorities in favor of another. It is very plain to us, in the state of the record, that the only real contest is as to the allowance of the sum of $500 from the purchase-price as a pony homestead under the provisions of sections 3416 et seq., and in the mode prescribed by § 3420. We are clear that the plaintiff in error is entitled to have her homestead set apart as prayed, and the question of what becomes of the remainder of the $900 after the payment of the costs of this proceeding and the homestead allowance is not presented to us by the writ of error.
Judgment reversed.