147 Ga. 335 | Ga. | 1917
We are of the opinion that under the facts of this case the plaintiff was not entitled to recover. The children are of age, but Mrs. Yeates is still in life and in possession as a beneficiary of the homestead set apart in 1875, and as such entitled to the possession of the land in controversy. Williford V. Denby, 127 Ga. 786 (56 S. E. 1010). It is argued that the plaintiff had no knowledge of the existence of the homestead at the time he took the deed from Mrs. Yeates, or at the time of the sale under foreclosure proceedings, at which he bought. The answer to this contention is, that, even if actual or constructive notice is necessary in such a case, the record shows that Mrs. Yeates testified that she mentioned the homestead to Mr. Donalson before the foreclosure of the mortgage, and that she was in actual possession of the land. It is .argued also, that, if the existence of the homestead at the. time that Donalson bought was a good defense, Mrs. Y eates should have set up that defense to the foreclosure proceedings; and Bank of Forsyth, v. Gammage, 109 Ga. 220 (34 S. E. 307), and other cases, are cited as authority in support of the contention that the due and unresisted foreclosure of a chattel mortgage, followed by a regular sale of the property, concluded the mortgagor from setting up any defense which he might have set up by counter-affidavit, and that it was binding upon him as head of a family. We do not think these cases are controlling. In the Gammage case there had been a waiver of homestead before the homestead was set apart, and the defense sought to be set up after the judgment was by the head of a family who had the homestead set apart, on the ground that the waiver was void because of usury. That makes a very different case from the present.
Under the constitution and laws of this State, homestead property can not be sold except in the manner provided by law. Const, art. 9, secs. 1, 2, 9 (Civil Code, §§ 6582, 6583, 6590). See § 3416. It has been held that the-head of a family, in whom is the legal title to land set apart as a homestead under the constitution of 1868, can convey his “reversionary interest” in the land'. Aiken v. Weldon, 139 Ga. 15 (76 S. E. 359). In the instant ease the head of the family did not alienate; and it has never been held in this State, so far as we are aware, that a mere beneficiary can convey title to the homestead estate. Even if the legal title devolved on
Judgment reversed.