Farmer v. Taylor

• Decision Date: 31 July 1876
• Citation: 56 Ga. 560
• Parties: George W. Farmer, plaintiff in error. v. Littleton B. Taylor et al., defendants in error.
• Court: Georgia Supreme Court

56 Ga. 560

George W. Farmer, plaintiff in error. v. Littleton B. Taylor et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

Bankrupt. Homestead. Before Judge Pottle. Taliaferro Superior Court. February Term, 1876.

Reported in the opinion.

*M. P. Reese; George F. Bristow, for plaintiff in error.

James F. Reid, by Sidney Dell, for defendants.

Bleckley, Judge.

In bankruptcy, a tract of eighty-five acres of land was assigned to a voluntary bankrupt in 1868, as exempt, under the law of force at that time. The bankrupt's family then consisted of a wife and seven children under sixteen years of are their first offspring. The wife died in 1872. and in the fo11owing year he intermarried with another. In 1874, he and the secondwife conveyed the property to a third person as security for a debt; and the creditor, at the same time, executed a bond for titles, conditioned to reconvey to the bankrupt on payment of the debt. This debt being afterwards reduced to judgment, a deed from the creditor was filed and recorded, conveying his title to the bankrupt, the debtor; after which, the fi. fa., founded on the judgment, was levied upon the land as the property of the latter. A claim was interposed by one of the children, then arrived at majority, in behalf of herself and of the others, still minors. On the trial of the claim, the court charged the jury that the conveyance to the creditor was void, and that the land was not subject, holding that the bankrupt and his wife had no right to sell or incumber the property, because, though laid off and assigned in bankruptcy, it was the homestead allowed to the head of a family under the state law, embodied now in section 2040 of the last Code. This section declares that certain "property of every debtor, who is the head of a family, shall be exempt from levy and sale by virtue of any process whatever under the laws of this state; nor shall any valid lien be created thereon, except in the manner hereinafter pointed out, but shall remain for the use and benefit of the family of the debtor." Among the property specified is land, to the extent of fifty acres, and five acres additional for each child under sixteen. Subsequent sections make provision for filing a schedule, surveying the land, making a plat, and having-the schedule and plat recorded in the office of the ordinary. Sections *2047 and 2048 declare that "the debtor shall have no power to alienate or incumber the property exempt under this law; but the same may be sold by the debtor and his wife, if any, jointly, with the consent of the ordinary of the county, the proceeds to go to the use of the debtor\'s family. The property exempt under this law shall be for the use of the wife or widow, and at her death or intermarriage to be equally divided between the children of her former marriage then living." That part of the fourteenth section of the bankrupt act of 1867, applicable to the case. excepts from the deed of assignment such...