Mobley v. Belcher

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN
• Citation: Mobley v. Belcher, 144 Ga. 442, 87 S.E. 470 (Ga. 1915)
• Decision Date: 17 December 1915
• Docket Number: (No. 132.)
• Parties: MOBLEY et al. v. BELCHER.

87 S.E. 470

144 Ga. 442

MOBLEY et al.

v.BELCHER.

(No. 132.)

Supreme Court of Georgia.

Dec. 17, 1915.

(Syllabus by the Court.)

Error from Superior Court, Decatur County; W. E. Thomas, Judge.

Action by Rebecca Mobley and others, by next friend, against A. E. Belcher. Judgment for defendant, and plaintiffs bring error. Affirmed.

A petition showed the following facts: A judgment was obtained and an execution issued in 1888 in favor of John B. Davis, surviving partner, against John Mobley & Bro., for a stated principal, with interest and attorney's fees. William Mobley, a member of the firm, obtained a homestead to be set apart to him as the head of a family, consisting at that time of his wife and one minor child. The execution was levied on the land, and William Mobley, as the head of a family, interposed a claim. In 1895 the attorney for the plaintiff in fi. fa. and the claimant entered into a written agreement that the case should be settled by allowing the plaintiff to take a verdict finding 125 acres of the land subject, and having the execution then transferred to Mobley. A verdict was taken ac-cordingly, except that the word "subject" was omitted, and a judgment was entered. The 125 acres of land were sold under the execution in 1898, and the defendant claims title under that sale. William Mobley died in 1904, and his widow remarried. His three minor children brought suit to recover the 125 acres from the person in possession, alleging that the verdict was void for indefinite-ness, that the sale of part of the homestead property was void, that the judgment and sale were "illegal and void and a fraud on petitioners, " and that the defendant was not an innocent purchaser for value without notice. The petition was dismissed on demurrer, and the plaintiffs excepted.

S. P. Cain, of Whigham, and W. V. Custer, of Bainbridge, for plaintiffs in error.

Pope & Bennet, of Albany, and M. E. O'Neal, of Bainbridge, for defendant in error.

LUMPKIN, J. (after stating the facts as above). The petition was rightly dismissed. The judgment was rendered against a firm of which William Mobley was a member before he obtained a homestead. It included stated sums for principal, interest, and attorney's fees. From this it may be inferred that it was based on a note or other promise to pay money. If so, it does not appear which member of the firm executed the promise, or whether it contained a waiver of homestead or not. If it did so, and William Mobley executed it, a homestead subsequently obtained by him was subject to the judgment. Perry v. Britt-Carson Shoe Co., 129 Ga. 560, 59 S. E. 216, 121 Am. St. Rep. 232; Winkles v. Simpson Grocery Co., 138 Ga. 482, 485, 75 S. E. 640. The head of the family had a right to interpose a claim to the levy, and a judgment on a claim interposed by him finding the property subject would bind the beneficiaries of the homestead. Wegman Piano Co. v. Irvine, 107 Ga. 65, 32 S. E. 898, 73 Am. St. Rep. 109. Whether the homestead was actually subject to the levy or not, that question was...