Harris v. Glenn

• Citation: 56 Ga. 94
• Court: Supreme Court of Georgia
• Decision Date: 31 January 1876
• Parties: William Harris, plaintiff in error. v. John J. W. Glenn et al.,defendants in error.

56 Ga. 94

William Harris, plaintiff in error. v. John J. W. Glenn et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Homestead. Vendor and purchaser. Laws. Debtor and creditor. Constitutional law. Mortgage. Before Judge Hall. Newton county. At Chambers. January 8th, 1876.

Reported in the opinion.

Emmett & Womack, for plaintiff in error.

McCay & Trippe; J. C. Barton, for defendants.

Bleckley, Judge.

In 1871 the vendor of certain lands conveyed the same by deed to the vendee. At the same time the latter gave to the former a mortgage upon it to secure the purchase money. Part of the money was paid in 1872, part in 1873, and part in March, 1874. These payments, altogether, amounted to about two-fifths of the price. In March, 1875, the vendor commenced the ordinary proceeding at law, to foreclose the mortgage for the balance. A rule nisi was granted; and in September thereafter, the mortgage was foreclosed in due form by rule absolute. In November following, the mortgage fi. fa., founded on this foreclosure, was levied upon the land. While the sheriff's advertisement for sale was running, the vendee made out a schedule claiming certain personalty and seventy acres of the land as exempt, returned the same to the ordinary, and had it recorded, in terms of section 2042 of the *Code. He also had the seventy acres surveyed and a plat thereof made and recorded, as required by section 2042 of the Code. The whole tract contained two hundred and fifty acres. The claim of exemption was not under the constitution, but under section 2040 of the Code, the vendee being the head of a family and having four children under sixteen years of age. When he created the debt he had seven children under that age. The sheriff, on the 4th of January, 1876, sold the whole tract under the levy, disregarding the claim of exemption, full notice of which was given at the time and place of sale before the property was sold. The mortgagee became the purchaser; and it is to restrain the sheriff from putting him in possession of the seventy acres claimed as exempt that the injunction is prayed for. The chancellor denied the injunction, and we affirm the judgment.

1. It has already been ruled by this court that the act of 1874, modifying the Code so as to exclude the exemption right against a debt for purchase money, applies to debts made prior to the passage of the act, as well as to those made subsequently: Sparger v. Cumpton, 54 Georgia Reports, 355. We have not been called upon to review that decision, and we are apprised of no reason for distrusting its soundness.

2. But the point has been made that the act thus construed is unconstitutional as divesting vested rights. Debtors have no vested right not to pay their debts. What they have and what they acquire the state may subject to legal process for the satisfaction of creditors. If the state will furnish the process and allow it to run, nothing that debtors own is beyond its reach. There is no fastness that can afford shelter against the public authority. Exemption of property from levy and sale for the payment of debts, is but a privilege for the time being—mere grace and favor, dependent on the will of the state. An exemption which exists by statute may be reduced or withdrawn by statute; and even constitutional exemptions may be terminated by the same power that created them, the people, expressingtheir...