Sparger v. Cumpton

• Decision Date: 31 January 1875
• Citation: 54 Ga. 356
• Parties: Mary A. Sparger, plaintiff in error. v. W. B. Cumpton, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 356

Mary A. Sparger, plaintiff in error. v. W. B. Cumpton, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

*Homestead. Purchase money. Before Judge Underwood. Walker Superior Court. August Adjourned Term, 1874.

On April 29th, 1874, an execution in favor of Cumpton against one Harvey R. Sparger and J. M. Bond, indorser, for $400 00 principal, besides interest and cost, based on a judgment rendered at the April term, 1874, of Walker superior court, was levied upon certain lands as the property of said Sparger. A claim was filed by Mary A. Sparger, the wife of the defendant. Upon the trial of the issue thus formed, the following facts appeared:

J. M. Bond sold the property in controversy to one James Bunch, executing to him a bond for titles and taking notes for the purchase money. The lands were sold by Bunch, and from him passed through the hands of several persons, until Harvey A. Sparger purchased, paying therefor and taking adeed from one Rodgers. The original purchase money due Bond had never been paid. He instituted suit therefor against Bunch, recovered a judgment, filed his deed in the clerk\'s office, levied on the land, and was proceeding to sell, when he was enjoined by a bill filed by Sparger. On December 3d, 1867, this litigation was settled by a written agreement, under which Bond released all his interest in, and title to, such lands to Sparger, and the latter agreed to deliver to the former two promissory notes, each for the sum of $200 00, one due December 25th, 1868, and the other on December 25th, 1869. This settlement was made the decree of the court at the February term, 1868. "The notes were not executed by Sparger until May 17th, 1869. The first was made payable one day after date, and the other as originally agreed on. These notes came into the hands of Cumpton, who sued them to judgment, and had the execution issued thereon, which is now levied on the land in controversy. On May 30th, 1874, a homestead of seventy acres was laid off in the tract to Sparger, under the 2040th section of the Code.

The jury found the property subject. The claimant moved for a new trial because the verdict was contrary to the law *and the evidence, and because the court erred in charging the jury as follows: "If you find, from the evidence in the case, that the fi. fa. levied on the land was predicated upon a debt owing for the purchase money of the land upon, which the homestead relied on by claimant has been laid off, and that such homestead was laid off since the act of the legislature of this state was passed, to-wit: on the 27th of February, 1874, then the homestead so laid off is subject to the fi. fa.; in deciding whether or not the debt is for the purchase money, you will look to the agreement and the decree of the court in evidence, considered together with all the other evidence in the case admitted before you."

The motion was overruled, and the claimant excepted.

D. C. Sutton; Dabney & Fouche, for plaintiff in error.

Shumate & Williamson; J. C. C. Clements, for defendants.

McCAY, Judge.

1. On a careful examination of the facts of this case, (and they are rather complicated,) it will be found that the amount the plaintiff's husband agreed to pay on the settlement of the litigation was, in deed and in truth, the amount still due to the defendant in the bill for the purchase money of the land. At any rate. Sparger, though he had paid his vendor, was still bound before he could get the title to pay what his vendor was still owing for his purchase money. This amount was the amount of the notes given to the plaintiff in this judgment, who, though not the vendor of Sparger, was the holder of the legal title; still, it was the purchase money. The man who sold to Sparger's vendor was still unpaid, and that is. the present debt. We think this comes clearly within the spirit if not the letter, of the exceptions in the homestead law. It is clearly within the equity of it. That the occasion of giving the notes was the settlement of the law-suit does not affectthe question. What was the lawsuit about? It seems that *was a dispute as to whether Sparger\'s vendor had paid the purchase money. The decision of the supreme court of the United States in Gunn v. Barry covers this case. That was just such a case. The homestead is good, but it is subject to this debt: See Chambliss v. Phelps, 39 Georgia, 386. Nothing was in issue before the ordinary but the questions he is, by the statute, authorized to act upon. Whether this debt was an exception does not come within the jurisdiction of the ordinary; unless, perhaps, the party had appeared and made the question and had it decided, and failed to except to the...