Pendleton v. Hooper

• Citation: 87 Ga. 108,13 S.E. 313
• Parties: Pendleton v. Hooper.
• Decision Date: 20 April 1891
• Court: Supreme Court of Georgia

13 S.E. 313

87 Ga. 108

Pendleton

v.Hooper.

Supreme Court of Georgia.

April 20, 1891.

Claim of Homestead Exemption — Estate Required.

The head of a family who, after judgment for a debt has been rendered against him, has parted with the title to his land by deed of gift, but has never parted with possession, may still assert the exemption allowed by section 2040 of the Code to arrest a sale of the land by virtue of the judgment. No present interest or estate in land beyond that implied in the fact of possession is requisite to sustain the claim of exemption, as against a debt or lien inferior to the exemption right.

(Syllabus by the Court.)

Error from superior court, De Kalb county; Richakd H. Clark, Judge.

Russer & Carter, for plaintiff in error.

H. C. Jones and J. N. Glenn, for defendant in error.

Bleckley, C. J. The premises in controversy consist of six acres, and are of the estimated value of $400. Hooper was in possession when the judgment against him was rendered, and has remained in possession ever since. He parted with the paper title by a voluntary conveyance made to several persons, some of them minors, on the day the judgment was rendered, and at an hour subsequent to its rendition. The lien of the judgment was made neither better nor worse by this conveyance. Had he parted also with possession, and never resumed the same, his ownership of the property would ' have been at an end; but, as he retained possession, he is still the owner against all the world except his donees. They may choose never to disturb him, or assert any title against him. That possession of land imports ownership is familiar law. 2 Bl. Comm. 196: English v. Register, 7 Ga. 391. Naked possession is the lowest and most imperfect degree of title, but it is never the less enough to hold off creditors, where exemption is claimed under section 2040 of the Code, and where the terms prescribed in section 2041 are complied with Here there was a compliance with these terms pending the levy, and while Hooper was in possession. It is not disputed that hewas the head of a family, or that he would be entitled to the exemption, if he had not divested himself of all title except possession. But he retained the very thing which the law of exemption is solicitous to protect. It cares not how little interest the debtor may have, so long as he remains in its actual enjoyment. The exempt land is "for the use and benefit of the family of the debtor;" so says the Code. The exemption does not...