Planters' Loan & Sav. Bank v. Dickenson

• Citation: 10 S.E. 446,83 Ga. 711
• Parties: PLANTERS' LOAN & SAV. BANK v. DICKENSON.
• Decision Date: 18 November 1889
• Court: Supreme Court of Georgia

10 S.E. 446

83 Ga. 711

PLANTERS' LOAN & SAV. BANK v. DICKENSON.

Supreme Court of Georgia

November 18, 1889

Error from superior court, Richmond county; RONEY, Judge.

Chas Z. McCord and F. W Capers, Jr., for plaintiff in error.

Twiggs & Verdery, for defendant in error.

SIMMONS J.

It appears from the record in this case that in the year 1875 Mrs. Dickenson, the defendant in error, applied to the ordinary of Richmond county for the setting aside of a homestead upon certain realty for the benefit of herself and family of minor children. It further appears in her application that her husband had refused to apply for the same, and that she applied for it out of his property. On March 25, 1875, the ordinary granted her application. It further appears that on January 9, 1884, Thomas P. Branch loaned Mrs. Dickenson $646.65, for which she gave her promissory note, due November 15, 1884. To secure the payment of this note, and on the same day, she executed to Branch a mortgage on the land which had been set apart as a homestead. Contemporaneously with the execution of the note and mortgage by Mrs. Dickenson, she entered into an agreement with Branch in which it was distinctly stipulated that the money should be applied to the purchase of materials for the homestead premises, said materials to consist in provisions, plantation supplies, and necessaries of life for herself and six children, and that, in default of payment being made, the homestead premises might be sold under an execution therefor. Branch indorsed this note, and discounted it to the Planters' Loan & Savings Bank, and transferred and assigned the mortgage to the bank. Mrs. Dickenson having failed to pay the note at maturity, the bank filed its petition at the October term, 1886, of the superior court of Richmond county against her, to foreclose the mortgage. The defendant demurred to the petition on the grounds (1) that the matter stated was not sufficient in law to enable the plaintiff to maintain the action, and that the cause of action, as set forth, was defective, in that it did not show in what the homestead estate consisted; (2) that no application was ever made to the judge of the superior court for authority to sell or mortgage the homestead property, and no order was granted by the judge authorizing the mortgage and (3) that since the adoption of the constitution of 1877 the homestead estate could not be mortgaged at all. And on the hearing of the case the judge below sustained the demurrer upon said grounds, and particularly upon the ground that the homestead estate could not be mortgaged, since the adoption of the constitution of 1877. To this decision the bank excepted.

Without...