Bank of Forsyth v. Gammage

• Decision Date: 07 November 1899
• Citation: 34 S.E. 307,109 Ga. 220
• Parties: BANK OF FORSYTH v. GAMMAGE.
• Court: Georgia Supreme Court

34 S.E. 307

109 Ga. 220

BANK OF FORSYTH v. GAMMAGE.

Supreme Court of Georgia

November 7, 1899

Syllabus by the Court.

The due and unresisted foreclosure of a chattel mortgage, followed by a regular sale of the mortgaged property under the mortgage execution, concludes the mortgagor, as to the property sold from setting up any defenses, including usury, which he might have set up by counter affidavit; and is also binding upon him as the head of a family, so as to estop him, as such from setting up that a waiver of homestead contained in the mortgage was void because of alleged usury in the debt it was given to secure.

Error from city court of Forsyth; W. M. Clark, Judge.

Action by N.H. Gammage against the Bank of Forsyth. Judgment for plaintiff, and defendant brings error. Reversed.

R. L Berner and Bloodworth & Rutherford, for plaintiff in error.

Stone & Williamson, for defendant in error.

LEWIS J.

N. H. Gammage gave to the Bank of Forsyth a mortgage on certain realty and personalty to secure a loan of money, and in it waived all right to homestead and exemption. The bank foreclosed this mortgage on the personalty therein described by making the usual affidavit as required by statute, upon which a mortgage fi. fa. issued, and was duly levied upon a horse and mule embraced in the mortgage. To this action no defense by affidavit of illegality or otherwise was made by the defendant, who had full knowledge of the proceeding. Pending the levy, the defendant, as the head of a family consisting of his wife and minor children, applied for a homestead and exemption in his property, including that embraced in the levy of the mortgage fi. fa. The application was pending at the time of the sale, and it was announced at the sale that whoever purchased would buy subject to the homestead. Nothing was said indicating any defense to the foreclosure, or any reason why the property was not subject to the debt. The property was bought in by the plaintiff in fi. fa. The ordinary afterwards granted the homestead and exemption applied for, and the defendant, as the head of his family, brought an action of trover against the bank to recover the property sold. The case was tried before the judge of the city court of Forsyth without the intervention of a jury, and a judgment was rendered in favor of the plaintiff in the trover case, whereupon the bank moved for a new trial, and excepts to the judgment of the court overruling its motion.

It appears from the record that the judgment of the trial judge was based upon the idea that the debt secured by the mortgage was tainted with usury, and that, therefore, the waiver of homestead in the mortgage was of no effect. There is no question but that this court is committed to the proposition that usury in a debt will defeat any waiver of homestead by the debtor. It is equally true that when such a debt is reduced to judgment, upon which final process is issued for its enforcement, without any plea or defense of usury filed thereto, the judgment is binding upon the debtor, and estops him even as the head of a family, from setting up that his waiver of homestead was void because of alleged usury in the debt. McLaws v. Moore, 83 Ga. 177, 9 S.E. 615; Stewart v. Stisher, 83 Ga. 300, 9 S.E. 1041; Lowry v. Parker, 83 Ga. 343, 9 S.E. 677; Barfield v. Jefferson, 84 Ga. 609, 11 S.E. 149. This is not a case where a general judgment was obtained against a defendant, nor where there had been any adjudication by a...