Brooks v. The State Of Ga.

• Decision Date: 31 January 1875
• Parties: Joseph H. Brooks, plaintiff in error. v. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 36

Joseph H. Brooks, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Homestead. Tax. Lien. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874.

On October 2d, 1873, the comptroller general issued an execution against Isaac T. Brooks, as tax collector of Muscogee county, and his securities, for $874 74, it being the amount of a default made by him in the year 1867. On November 17th, 1873, a levy was made on certain lots of land which were claimed by Joseph H. Brooks. On the trial of this issue the following facts appeared:

On August 9th, 1869, Mary F. Brooks, wife of.the defendant in fi. fa., for herself and minor children, applied for a homestead in the aforesaid land, under the act of 1868. The homestead was allowed on the 8th of the following mouth. At the April term, 1873, of the court of ordinary, leave was granted to sell the homestead. Under this authority, Mary F. Brooks, on April 13th, 1873, conveyed said property to claimant. She and her minor children remained in possession of the lots until August or September of the year of the sale. The claimant then assumed possession, and has since so remained.

The court charged the jury, that the facts aforesaid being undisputed, the property levied on was subject to the execution. To this charge the claimant excepted. The jury found accordingly.

Error is assigned upon the above ground of exception.

Thornton & Grimes, for plaintiff in error.

W. A. Little, solicitor general, for the state.

*TRIPPE, Judge.

1. The default of the tax collector occurred in 1867. His bond was executed in that year, and his property was bound from the date of its execution, and so was the property of his sureties: Code section 913. The comptroller general issued the execution against the collector and the sureties on his bond. The question is, did the assignment of the homestead to the wife of the collector, in this land, protect it against the execution, the debt due the state? In Gunn v. Barry, 15 Wallace 610, the supreme court of the United States held that the homestead provisions of the constitution and laws of this state did not operate on debts created before their adoption, at least that such a construction of them would render them unconstitutional. It is true, that was a case between citizens, and it may be said that though the state cannot impair the obligation of such contracts, still, its power is not thereby limited as to its right to remit its own claims, debts due itself, or a lien it has on a citizen\'s property. This proposition may be true, but it would take a very clear case to authorize such a construction of the constitution or a statute, that would declare them void, as to persons, but not so as to the state. The general rule is that the king or the state is not bound by the general words of a statute...