Chambliss v. Cphelps

• Decision Date: 30 June 1869
• Citation: 39 Ga. 386
• Parties: LAWSON G. CHAMBLISS, plaintiff in error. v. OLIVER C.PHELPS, defendant in error.
• Court: Georgia Supreme Court

39 Ga. 386

LAWSON G. CHAMBLISS, plaintiff in error. v. OLIVER C.PHELPS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Homestead. Constitutional law. Dormant Judgment. Before Judge Green. Monroe Superior Court. April Term, 1869.

Chambliss petitioned the Ordinary of said county for the exemption from his debts of certain personalty and certain land as his homestead. In obedience to the order of the Ordinary the county surveyor laid off certain five hundred and one acres of land in said county as said homestead, and certified that they were not worth over $2000 00 in specie. Phelps, by his attorney, appeared and objected to the Ordinary approving said exemption, upon the following grounds: *Because he, Phelps, was the holder and owner of a fi. fa., issued from the Superior Court of said county, in favor of Archibald Lary against said Chambliss for $887 53 principal, $3 58 interest, to the date of the judgment, to-wit: the 5th of September, 1856, and interest since, up to date, which judgment was founded upon a note given to said Lary for the purchase-money of said land; and also owner of a mortgage fi. fa., founded upon the foreclosure of a mortgage for $2000 00, by said Chambliss on said land to said Phelps on the 8th of November, 1858. The rule absolute was taken in said county in August, 1867. Further, he objected because Chambliss had no wife nor minor child dependent upon him as the head of a family.

The Ordinary, on the 26th of January, 1869, approved the exemption of the homestead as laid off by the surveyor, and Phelps appealed to the Superior Court.

At the trial Chambliss' attorneys read in evidence all the said proceedings before the Ordinary, and closed. Phelps' attorney then offered in evidence his said fi. fa. in favor of Lary, heretofore partially described. Said fi. fa. was issued on the 22d of November, 1856. The only entries thereon showed the following facts: On the 22d of November, 1856, Phelps paid Lary $903 43, and he transferred said fi. fa. and judgment to Phelps. On the 27th of February, 1869, it was levied on the lands which had been assigned as said homestead. This fi. fa. was objected to by Chambliss' attorney because it was apparently dormant. The objection was overruled, and the fi. fa. was read in evidence. Said mortgage fi. fa. was also read in evidence. It was admitted that the Lary fi. fa. was founded upon a note given for the purchase-money of said land, and that Phelps paid for said fi. fa., and the cause was argued before the Judge upon that statement of facts. He adjudged that the said approval of the Ordinary be overruled, and the application for exemption be disallowed, until said two fi. fas. were paid.

Chambliss' attorneys assign as error the refusal to reject the Lary fi. fa. when offered as evidence, and the decision that theexemption could not be allowed till said fi. fas. were paid.

Cabaniss & Peeples, T. B. Cabaniss, for plaintiff in error.

J. S. Pinckard, for defendant in error.

McCAY, J.

The Constitutionality of the Homestead Law, which is one of the points made in this case, is discussed and decided in the case of Downer v. Hardeman, decided at this term of the Court, and for the reasons there given we made the same decision in this case.

1. It is one of the express exceptions in the Homestead provision of the Constitution, that the Courts shall have jurisdiction to enforce against the homestead, when set apart, a judgment founded on a debt contracted for the purchase-money. See Article VII, section 1, Constitution of 1868. This is no personal privilege of the vendor of the land, but according to the express language of the Constitution, it is a privilege of the contract, and goes with it, like the other privileges, into whosever hands it may fall. It is admitted that the judgment of Phelps is founded on a debt contracted for the purchase-money. We hold, therefore, that it may be levied on the property of which it is the consideration, even though it be set off as a homestead to the family of the debtor.

2. Under the decision we have made in the case of Battle v. Shivers, at this term, the fi. fa. of Phelps is undoubtedly dormant, but, as is manifest from the reasoning in that case, it is still a judgment, as against the defendant; it has every quality of a judgment, except that it cannot be levied until he has had an opportunity to show that it has been satisfied. It is a dormant, sleeping judgment, and must be revived by scire facias before it can proceed to levy and sale. By section 2863 of the Code, it must be revived in three years after it becomes dormant, or it cannot be revived or sued on afterwards. It becomes dead.

3. By the Act of 1856 it was presumed to be satisfied if allowed to go seven years without an entry, but as we have *held in Battle v. Shivers, that was a Statute of Limitations, and was suspended by various Acts, until it was sus-pended by the Code. The provision in the Code limiting scire facias and actions upon judgments to three years after they become dormant, is a provision to limit the time within which proceedings shall be commenced in a court of justice, and it is clearly also a Statute of Limitations, and was also suspended by these Acts until the "complete restoration of civil government in this State." Convention of 1868. We held in a case at this term, of Daniel v. Foster, that civil government was practically restored on the 22d of July, 1868, and this judgment is a judgment, a record evidence of debt, until barred.

4. We do not however agree with the Court in holding that because the homestead is subject to this judgment, after proper steps are taken to put it in active shape, that the homestead can not be laid off. The Constitution of 1868, Art. "Homestead, " expressly provided that such a judgment may proceed against the homestead, though laid off. The issue allowed to be made up by the Acts of 1868 and 1869, is whether the applicant is such a person as is entitled to a homestead, and whether it is properly and fairly laid off, etc., etc. When laid off, if the debt sought to be enforced is a judgment founded on a debt contracted for any of the exceptions mentioned, then the homestead is subject to such judgment.

We therefore reverse the judgment in this case on the ground that the existence of this debt, though it is one of the exceptions, is not any reason why the homestead should not be laid off; and on the further ground, that the mortgage mentioned in the order is not one of the exceptions of the Homestead Act.

5. As to mortgage, we will in this case only say, that it is not one of the exceptions. Were the Homestead Law a mere Legislative Act, we would doubt much if, secured as the right to sell is by contract, it was in the power of the Legislature so...