Amerson v. Cox
| Decision Date | 18 September 1931 |
| Docket Number | 8143. |
| Citation | 160 S.E. 506,173 Ga. 477 |
| Parties | AMERSON v. COX. |
| Court | Georgia Supreme Court |
Syllabus byEditorial Staff.
Real estate paid for with homestead and dealt with as exempted property is impressed with homestead character.
Records of prior suits between parties and judgments therein involving property held admissible to show property which was received in exchange for homestead, lacked homestead character.
The evidence disclosed that plaintiff procured the land in question in exchange for certain homestead property, that he subsequently moved on the land, and thereafter made a deed of gift of all his land including this tract to his wife. The prior suits between the parties, records of which were introduced, were a suit by creditor against the present plaintiff and his wife to enjoin him from selling the property to avoid payment of debts, in which creditor recovered judgment, and a suit by the debtor against the creditor to enjoin the sale of the property, and a subsequent claim interposed by debtor's wife when fieri facias was levied thereon under judgment. In none of these proceedings was there any insistence by the debtors that the property was homestead, and the proceedings terminated in favor of the creditor.
In suit to recover property and set aside sheriff's sale thereof evidence sustained finding that property, received in exchange for homestead land, was not homestead.
The uncontradicted evidence showed that after making the exchange the debtor did not for several years move upon the land, and in the meantime he conveyed the land by deed of gift to his wife, and that when the land was levied upon as the husband's property she interposed claim, and both she and her husband carried on unsuccessful litigation with the present defendant, seeking to prevent the sale of the property for the husband's debts, and that in none of these proceedings was it contended that the land in question had become impressed with the character of homestead property.
Where evidence is insufficient to show homestead character question of notice to one purchasing land at sheriff's sale is immaterial.
Error from Superior Court, Taylor County; C. F. McLaughlin, Judge.
Suit by A. J. Amerson, as head of a family, against S.E. Cox. Judgment for defendant, and plaintiff brings error.
Affirmed.
Real estate paid for with homestead and dealt with as exempted property is impressed with homestead character.
In 1913, A. J. Amerson, as head of a family consisting of his wife and himself, procured certain land to be exempted as a homestead under the Constitution and laws of this state. In 1920, Amerson, individually, and without any order of court exchanged the land with Mrs. Moore for a smaller tract containing forty acres of lot No. 138 in the 14th district of Taylor county, and $1,000 in cash. Several years thereafter he moved with his wife upon the land acquired from Mrs. Moore, and continued to reside there. Soon after the exchange, he became indebted to S.E. Cox, and in 1922 he made a deed of gift of all his land, including the forty-acre tract, to his wife. In 1923, S.E. Cox brought suit against Amerson and his wife, to enjoin them from selling their property to avoid payment of debts. A judgment was rendered against them. In 1925, Amerson and his wife brought suit against Cox to enjoin the sale of property, including the said forty-acre tract. In that case, a judgment was rendered in favor of Cox. In the same year (1925) Cox, having obtained judgment upon the debt due by Amerson to him, caused his fi. fa. to be levied on the said forty acres, and Mrs. Amerson interposed a claim. The property was found subject, October 7, 1926. In none of the several proceedings was there any insistence by the Amersons that the forty acres was "homestead" property. After termination of the claim case, the land was sold May 3, 1927. Cox became the purchaser, and the sheriff ousted Amerson and put Cox in possession. In 1929, Amerson, suing as "head of the family," brought suit against Cox to recover the "homestead" interest and the value of rents. Similar relief was sought relative to other lands alleged to have been purchased by Amerson from Cox, and to have been partially paid for out of the $1,000 cash received in the exchange of the original homestead, which was alleged to have been sold by the sheriff on execution for the balance of the purchase money. The answer of the defendant denied the material allegations of the petition relating to relief based on homestead exemption, and set up res adjudicata, based on the adjudications above mentioned.
At the trial, Amerson testified, in part: ...
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