Horn v. Mcneill

• Citation: 79 Ga. 121
• Parties: Van Horn. vs. McNeill, administrator.*
• Decision Date: 31 March 1887
• Court: Georgia Supreme Court

79 Ga. 121

Van Horn. vs. McNeill, administrator.^*

Supreme Court of the State of Georgia

MARCH TERM, 1887.

Homestead. Debtor and Creditor. Reversions. Before Judge Willis. Chattahoochee Superior Court. September Term, 1886.

Reported in the decision.

Joseph F. Pou, for plaintiff in error.

McNeill & Levy, for defendant.

Bleckley, Chief Justice.

Upon a debt contracted in 1870, judgment was rendered in favor of the creditor in 1876. Afterwards in the same year, a homestead of realty was set apart to the debtor. In 1885, the judge of the superior court, exercising the jurisdiction conferred by statute, authorized the sale of the homestead, and it was sold in that year under the judge's order, the whole estate in fee being conveyed to Van Horn. In 1886, what is termed the reversionary interest in that property was levied on by virtue of this creditor's execution, and Van Horn interposed a claim. It was returned to the superior court for trial, and the facts were all agreed upon in a written statement presented to the judge, and he held that the reversion was subject tolevy and sale; and this writ of error was brought to reverse that judgment.

The case is controlled by Stephenson vs. Eberhart, decided a few days ago; and I shall make very few observations. There was a point argued and insisted upon, by which it was sought to distinguish this from the case to which I refer. That point was that this debt, being contracted prior to the act of 1878 (code, §2025), which determines the interest that the purchaser takes under such a sale, was not affected by the act; that the right to subject the reversionary interest was a vested right, arising at the time the debt was created, and that the reversion was then subject to sale under circumstances such as exist here; and this being so, that the act of 1878 could not defeat the creditor's right to subject it. The argument proceeds upon a total misapprehension of the nature of the homestead right and of homestead exemption. The constitution of 1868, under which this homestead was set apart, declared that the head of a family might have a homestead of realty to the value of $2,000, to be valued at the time of setting apart. That valuation embraced all the interest in the land. It did not estimate the value of a homestead estate, leaving out a reversionary interest, but it included the value of the whole property. Two thousand dollars worth of realty was exempted, and no execution could be enforced against anything embraced in that valuation. The reversion, so called, was included in the exemption just the same as the homestead estate so-called. The truth is, under the scheme of the constitution, there is no carving of any homestead estate or any other estate out of the property valued. It is the property, the physical property, that is exempt from levy and sale, and all interest is exempt so long as it remains homestead property, that is, so long as the homestead term continues. Taking the constitution alone, it would seem that the property would never become subject to levy and sale; but as the constitution has been construed, and as the statuteshave grown up around it, there is a limitation to the time during which the homestead interest continues. The constitution never contemplated that there should be any sale, if at ail, until the whole could be sold; and that is right, because there ought not to be carved out of the fee an estate to sell, by which some one else could get an...