Rushin v. Gause

• Decision Date: 30 June 1870
• Citation: 41 Ga. 180
• Parties: JAMES RUSHIN, plaintiff in error. v. JAMES R. GAUSE, defendant in error.
• Court: Georgia Supreme Court

41 Ga. 180

JAMES RUSHIN, plaintiff in error. v. JAMES R. GAUSE, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1870.)

Lien. Exemption. Bankruptcy. Before Judge Andrews. Hancock Superior Court. April Term, 1870.

In June 1863, Gause gave Rushin a promissory note for $362 50, for the purchase of certain land in said county. Rushin sued Gause upon it and obtained judgment on the 10th of October, 1866. The fi. fa. issued upon said judgment was, on the 29th of October, 1869, levied upon said land. Before this levy Gause had been adjudged a bank-rupt, under the Act of Congress of the 2d of March, 1867, his schedule filed with his petition for such discharge included said land, and the land was, by his assignee in bankruptcy, regularly laid off and assigned to him as exempt from his debts. He met said levy by an affidavit that it was illegal because said land had been so executed. Rushin did

*not prove his debt in bankruptcy, but relied on the lien of said judgment. Upon these facts the Court held that said levy was illegal and dismissed it. That is assigned as error.

J. T. Jordan, by William Reese, for plaintiff in error.

Linton Stephens, for defendant, said the bankrupt Act adopts exemptions of force in 1864, and that in 1864 the exemption of realty was not subject to payment of the purchase-money for said realty: Irwin's Code, Section 2013.

McCAY, J.

The bankrupt law of Congress, of the 2d of March, 1867, Section 25, vests in the bankrupt, free from his debts, whatever property the State exempted from levy and sale, under laws in force in the year 1864, and we must presume that the property now levied on, as it was set apart to the debtor, under the proceedings in which he was declared a bankrupt, is property that was exempted by our Code which went into force as the law on the 1st of January, 1863. Section 2013 of the Revised Code, exempts certain real estate from levy and sale as the homestead of the debtor, but makes no exception in favor of a debt due for the purchase-money, as does our Constitution of 1868. The debtor takes the exemption under the law by which it is granted to him. That law did not make it liable to be sold for the purchase-money, and in our judgment it is not so liable.

It is not worth while to repeat the arguments which establish that the "Code" became the law on the 1st of January, 1863, even as to those clauses which altered the previous laws. The Act of December 19th, 1861, can be sustained as a...