Collier v. Simpson

• Decision Date: 17 March 1885
• Citation: 74 Ga. 697
• Parties: COLLIER et al., executors, v. SIMPSON et al.
• Court: Georgia Supreme Court

74 Ga. 697

COLLIER et al., executors, v. SIMPSON et al.

Supreme Court of Georgia.

March 17, 1885

February Term, 1885.

When a homestead and exemption in bankruptcy was granted by the judge or register in the federal court, such exemption is no more subject to levy and sale than if it had been set apart by the ordinary having jurisdiction thereof.

( a. ) This case is controlled by that of Ross adm'r, vs. Worsham, 65 Ga. 624.

( b. ) If application for homestead and exemption be made in land, the fact that a prior levy has been made will not prevent the grant of the homestead or exemption in the property before sale, or from the proceeds in court after sale.

( c. ) A mortgage to secure an attorney's fee contracted after the adoption of the constitution of 1868 was not a debt which would subject the homestead, even if the services were rendered in a case involving the removal of an incumbrance on the land.

Bankruptcy. Homestead. Levy and Sale. Mortgage. Attorney and Client. Before Judge WILLIS. Stewart Superior Court. October Term 1884.

A mortgage fi. fa. in favor of H. Fielder, transferred to W. A. Rawson, against Mary F. Simpson et al., was levied on certain land, and she interposed an affidavit of illegality. One ground of this was that the debt on which the mortgage was founded arose since 1868; that in 1875 defendant was adjudged a bankrupt; that the property levied on was set apart to her as an exemption by the assignee; and that she was discharged in 1876.

Plaintiffs demurred to this ground, because it did not allege that notice was given to Fielder of the proceedings in bankruptcy or that the debt was not within the exceptions to the effect of the homestead law. The demurrer was overruled.

The case was submitted to the presiding judge without a jury. The following facts, in brief, appeared: The bankruptcy, setting apart of exemption and discharge occurred as alleged in the affidavit. The title to the land in controversy was originally in one Boynton, and Mrs. Simpson and her husband were in possession. After the death of Boynton, his executors brought suit against them for the land and mesne profits. Fielder and another were employed to defend the suit. They filed a bill setting up a sale by Boynton of the land to Mrs. Simpson, as her separate estate, and the payment of the purchase money by her. A decree was rendered in her favor. At some point in the proceedings, one Kirksey was made her trustee. This mortgage was given in 1872 for the balance of the fee due Fielder. It was foreclosed in 1873, and the fi. fa. was levied. In 1875, it was transferred to Rawson, who subsequently died, and the present holders are his executors.

The court sustained the illegality. Plaintiffs moved for a new trial, which was refused, and they excepted.

W. D. KIDDOO, for plaintiffs in error.

T. D. HIGHTOWER, by W. H. HARRISON, for defendants.

JACKSON Chief Justice.

On a careful examination of the numerous cases cited by the learned and able counsel for plaintiffs in error in the Georgia reports touching this...