Dearing v. Thomas

By the Court. McDonald, J. delivering the opinion. [1.] This cause was heard and determined at the February Term of the Superior Court of Lumpkin county, 1858. It seems, from an agreement of the counsel, not referred to in the foregoing statement of the case, that the sale of the property from which the money was raised, which gives rise to this contest, was made in October, 1857, under an order of Court passed at the previous August Term. It does not appear in the Record why it was that the Court passed this order. It may have been on some dispute or issue in respect to the value of the property in the defendant’s possession, and for the protection of the levying officer. This Court has decided, that it is not necessary to give notice and have a survey made In cases where the land levied on is less than the quantity exempted by the statute; and in another case, that, as the law exempts one horse of the value of fifty dollars from levy and sale, and the defendant has büt one horse, and his value exceeds fifty dollars, he shall be allowed fifty dollars from the proceeds of sale to purchase a horse of that value. Moultrie vs. Elrod, 23 Ga. This equitable construction of the Act may bs well applied to a town lot which cannot be so partitioned as to allow the debtor his rights under the exemption Act; and we will not interfere with the judgment of the Court below on that assignment of error. The order at August Term for the sale of the land, may have been predicated on the said decisions. A defendant is entitled, by the Act, to own, hold and pos [225] sess the property exempted. It is not pretended that the defendant owned property at Hawkinsviile, whither he had removed, or elsewhere, except in the village of Leathersford. If he owned it, and it was all he owned, his removal to another place not owned by him, did not remove it from the operation of the Act. He could not have sold the land without the consent of the wife, who must, of her own free will and choice, have signed the deed with him. He could not, by a removal, destroy her right. The profession of the defendant, an itinerant Methodist clergyman, shows that he could have no permanent home. His calling was abroad, and his high duties necessarily carried him from his family; but that is no reason why he and they .should be placed out of the protection of this humane law. The creditor cannot complain, for he contracted under the law exempting a certain portion of the debtor’s property from levy and sale. It was his contract that so much of the debtor’s land, or house and lot, as amounted to the sum specified in the Act, should not be disturbed by the debt. The judgment of the Court belcnv must be affirmed. Judgment affirmed.