Mccurry v. Peek

• Court: Georgia Court of Appeals
• Writing for the Court: MacINTYRE
• Citation: Mccurry v. Peek, 54 Ga.App. 341, 187 S.E. 854 (Ga. App. 1936)
• Decision Date: 15 October 1936
• Docket Number: No. 25628.,25628.
• Parties: McCURRY. v. PEEK.

54 Ga.App. 341

187 S.E. 854

McCURRY.

v.PEEK.

No. 25628.

Court of Appeals of Georgia, Division No. 1.

Oct. 15, 1936.

Syllabus by the Court.

1. The exemption from levy provided by section 3 of the act of Congress approved August 12, 1935 (49 Stat. 609, see 38 U.S.C.A. §§ 54 note, and 454a), relating to World War veterans in respect to "payment of benefits" does not extend to real estate purchased with such "benefit payment" received from the United States by a veteran as "benefit payment."

2. World War veteran's real estate held not exempt from levy, notwithstanding it was purchased with "benefit payments" received from the federal government (Acts of Congress, approved August 12, 1935, § 3, 49 Stat. 609, see 38 U.S.C.A. §§ 54 note, and 454a).

Error from Superior Court, Hart County; Berry T. Moseley, Judge.

Proceeding between W. E. McCurry and Bessie Peek. To review an adverse judgment, first-named party brings error.

Affirmed.

B. B. Zellars and A. S. Skelton, both of Hartwell, for plaintiff in error.

Hugh & Carey Skelton, of Hartwell, for defendant in error.

MacINTYRE, Judge.

The question for determination in this case is whether land purchased with the "payment of benefits" under the laws relating to World War veterans shall be exempted from the claims of creditors, and shall not be liable to attachments, levy, or seizure, by or under any legal or equitable process whatever. In Mcintosh v. Aubrey, 185 U.S. 122, 124, 22 S.Ct. 561, 562, 46 L.Ed. 834, the court held that the property which had been purchased with the pension money was exempt from seizure and sale and execution, under section 4747 of the Revised Statutes of the United States, 38 U.S.C.A. § 54, as follows: "No sum of money due, or to become due, to any pensioner shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the Pension Office, or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall enure wholly to the benefit of such pensioner." In Liles v. Mulford Co., 52 Ga.App. 674, 184 S.E. 396, it was held, under section 454 of title 38, U.S.C.A., that a World War veteran's automobile was not exempt from levy, notwithstanding the automobile was purchased with compensation the veteran received from the federal government. Section 454 is as follows: "The compensation, insurance, and maintenance and support allowance payable under Parts II, III, and IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under Parts II, III, or IV; and shall be exempt from all taxation. Such compensation, insurance, and maintenance and support allowance shall be subject to any claims which the United States may have, under Parts II, III, IV, and V, against the person on whose account the compensation, insurance, or maintenance and support allowance is payable." Both of the above-cited sections were expressly repealed by section 3 of the act of Congress approved August 12, 1935, 49 Stat. 609, see 38 U.S.C.A. §§ 54 note and 454a, as follows: "Payments of benefits due or to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. Such provisions shall not attach to claims of the United States arising under such laws nor shall the exemption herein contained as to taxation extend to any property purchased in part or wholly out of such payments.

Section 4747 of the Revised Statutes and section 22 of the World War Veterans' Act, 1924, are hereby repealed, and all other Acts inconsistent herewith are hereby modified accordingly. The provisions of this section shall not be construed to prohibit the assignment by any person, to whom converted insurance shall be payable under title III of the World War Veterans' Act, 1924, of his interest in such insurance to any other member of the permitted class of beneficiaries." It is under this 1935 act of Congress that the plaintiff in error claims that the real estate which he purchased with "payment of benefits" received by him from the federal government is exempt from levy.

Section 4747 (which has been repealed) seems to have been restricted to money due and to be due, and not to money received, or to real estate purchased with the pension money. In discussing this section, the Supreme Court of the United States said, in Mcintosh v. Aubrey, supra: "It is not that pension money shall be exempt from attachment in all of its situations and transmutations. It is only...