Broach v. Powell
| Decision Date | 16 April 1887 |
| Citation | 79 Ga. 79,3 S.E. 763 |
| Parties | Broach v. Powell, Ex'r, and others. |
| Court | Georgia Supreme Court |
An express waiver of homestead in mortgaged premises, contained in the mortgage deed, is a renunciation of the homestead right, whether the right could be asserted at the time of executing the deed or not. Hence, such a waiver by a single man will bar his claim of homestead when he afterwards marries.
That mortgaged property is subject to be administered in bankruptcy will not entitle the mortgagor to resist the administration of it by foreclosure and sale under proceedings in the appropriate court of the state.
(Syllabus by the Court.)
Eiror from superior court, Jones county; Lawson, Judge.
Nisbet, Edge & Nisbet and Lyon & Qresham, for plaintiff in error. Dessau & Bartlett, for defendants.
In 1874 a mortgage was executed upon 1, 000 acres of land, to secure a debt of $1,900. The mortgage deed contained a waiver in these terms: " I hereby waive all right to homestead in the above-described land." In August, 1876, the mortgagor married. In October thereafter he was adjudicated a bankrupt, on his own petition. Afterwards, in the same month, the mortgagee commenced proceedings against him in the superior court to foreclose the mortgage. A petition was filed, and a rule nisi granted. Personal service of the rule was effected upon the mortgagor in December of that year. At what precise date does not appear, but doubtless soon after his appointment, the assignee in bankruptcy laid off and set apart to the bankrupt 600 acres of the mortgaged land as exempt, and rented to him for the years 1877 and 1878 the other 400 acres.
In January, 1877, the assignee caused a written notice to be served on the mortgagee that application would be made on a certain day to the register in bankruptcy for an order to sell all the real estate of the bankrupt, free from liens and incumbrances. On the specified day, which was in February, 1887, the register passed an order for the sale of 400 acres, free from liens and incumbrances. Five days later this order was approved by the district judges. No sale, however, took place, and the bankrupt remained in possession of the whole tract, both the exempt and the non-exempt parcels.
The rule to foreclose was returnable to the April term, 1877, of the superior court. During that term, on April 17th, the bankrupt, in answer to the rule, filed certain pleas; among them, one setting up that the court ought not to foreclose the mortgage, because of the bankruptcy. There was no express objection to the jurisdiction, but rather the jurisdiction was by implication admitted and submitted to; for in his pleas the bankrupt alleged that equitably the part of the land exempted to him in bankruptcy as a homestead ought not to be sold until the other part had been sold. The pleas were all demurred to and stricken, and on the eighteenth of April a rule absolute was granted foreclosing the mortgage. On the twenty-sixth of April a fi. fa. was issued upon this judgment of foreclosure. In January, 1878, the mortgagor had set apart to him by the ordinary of the county, under the state law, a homestead covering the same premises—the same 600 acres—that had been previously set apart to him as exempt by the assignee in bankruptcy. In March, 1878, the bankrupt was discharged from his debts in terms of the bankrupt law. This mortgage debt was never proved in bankruptcy, nor otherwise referred to that jurisdiction for allowance or adjustment. In March, 1886, the mortgage fi. fa. was levied upon the whole of the mortgaged premises; and, in April following, an affidavit of illegality to the fi. fa. and the levy was presented by the mortgagor, which being overruled, this writ of error was brought.
The grounds of the affidavit relied on here were two: (1) That the bankruptcy proceedings, as a whole, deprive the superior court of jurisdiction to render a judgment of foreclosure upon the mortgage; (2) that, if the foreclosure was proper and legal, the premises set apart as exempt in bankruptcy, and afterwards set apart as a homestead by the ordinary, are not subject to sale now. The latter brings up the effect of waiving, in the mortgage deed, "all right to homestead, " and will be considered first.
1. The right to homestead or exemption is personal to the debtor, the owner of the property; and its exercise or non-exercise is subject to his decision. Bowen v. Bowen, 55 Ga. 182. That he can make his decision by waiver as to specific property at the time of creating a lien upon it for securing a debt, is firmly established. Simmons v. Anderson, 56 Ga. 53, (approved in Stafford v. Elliott, 59 Ga. 838;) Allen v. Frost, Id. 558; Flanders v. Wells, 61 Ga. 195; Smith v. Shepherd, 63 Ga. 454; Jackson v. Parroit, 67 Ga. 210. Under the constitution of 1877, he can even affect all his property (save the small amount expressly excepted to in the constitution) by a general waiver. Flemister v. Phillips, 65Ga. 676; Boroughs v. White, 69Ga. 842. This, being an enlargement of the right and power to waive, indicates a liberal public policy in behalf of waiver; for, prior to the new constitution, a general waiver was ineffectual. Stafford v. Elliott, (supra,) 59 Ga. 837, (approved and applied in Green v. Watson, 75 Ga. 472, 473.)
According to this unbroken line of authority, the waiver contained in the mortgage now before us, if treated as a waiver at all, renders the mortgage superior to the homestead granted by the ordinary in January, 1878, some four years after the mortgage was executed. And the exemption in bankruptcy left the title of the debtor to the exempted land precisely as it was before. Bush v. Lester, 55 Ga. 581; Farmer v. Taylor, 56 Ga. 559; Broach v. Barfield, 57 Ga. 604; Burtz v. Robinson, 59 Ga. 763, Laramore v. McKenzie, 60 Ga. 534; Brady v. Brady, 67 Ga. 368; Felker v. Crane, 70 Ga. 484; Anderson v. Brown, 72 Ga. 713. The bankrupt law, in and of itself, afforded the land no protection whatever against the specific lien upon it created by mortgage, notwithstanding it was duly set apart as the bankrupt's exemption. Long v. Ballard, 117 U. S. 617, 6 Sup Ct. Rep. 917. This court, however, construing the bankrupt law and the state law together, has, by a very liberal construction, determined that as to exemptions in bankruptcy, measured by the latter, (and so are all exemptions of land,) the due setting apart in bankruptcy has the same effect in holding off prior liens (that is, liens existing at the time of the adjudication) as would a regular setting apart by proceedings before the ordinary in the method prescribed by our own statute. Rushin v. Gause, 41 Ga. 180; Bush v. Lester, (supra,) 55 Ga. 582; Benedict v. Webb, 57 Ga. 348; Ross v. Worsham, 65 Ga. 624; Brady v. Brady, 71 Ga. 71; Collier v, Simpson, 74 Ga. 697. This rule, applied to specific liens, certainly goes quite far enough in giving effect to exemption obtained in bankruptcy. In view of the express provisions of the bankrupt act, and of the construction placed thereon by the supreme court of the United States, it would be absurd to hold that such an exemption would be more efficacious against a mortgage lien than would be a homestead procured before the ordinary. The result, is that both together will count for no more in the present case than would either one separately, and that, if the waiver in question will prevail over either, it will prevail over Loth.
We have already seen that, if treated as a waiver at all, it will prevail. The only question not decisively ruled by the foregoing authorities is whether it can be so treated. And why can it not? The sole reason urged in the argument was that the mortgagor, not having married until after the mortgage was executed, was not the head of a family when he executed the mortgage and made the waiver. It is said he could not waive what he did not have, and that he had no homestead right, but acquired it afterwards upon his marriage. True, he did not have a complete unconditional right, but he had an inchoate contingent right, and he waived "all right." This inchoate or contingent right, being surrendered by the waiver, did not remain with him so as to mature into a complete and perfect right on his subsequent marriage. While, with some exceptions not now material, no person but the head of a family can take a homestead, yet every person, male or female, in Georgia, capable of ever becoming the head of a family, has a homestead right, either complete or incomplete; and we know of no obstacle to waiving a right of the latter kind as freely as one of the former. A wife has no complete right to dower in specific land so long as her husband is alive, yet she can bar herself by a proper relinquishment or renunciation. An indorser has no complete right to notice of dishonor until dishonor has occurred, yet he can waive notice beforehand. And in Boroughs v. White, supra, this courtconsidered, among other things, the waiver of a homestead right much more contingent than the one now in question, and pronounced it effective. In that case a promissory note was executed before the constitution of 1877 went into effect, which note contained a general waiver of homestead. Though, under the law as it then stood, such a waiver was good for nothing, the court held that it avoided a homestead taken afterwards under the constitution of 1877. Moreover, the homestead right there asserted not only rested for its completion on a subsequent organic law, but upon new grounds of homestead brought into the system by that law. Thus, a double contingency had to be realized in order to perfect the right to which the waiver was applied. Here, on the contrary, the single event of marriage was alone necessary to perfect the right, —an event much less contingent in its nature than the adoption of a new constitution, even were there always with us an Abbe...
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