Harris v. Colquit & Baggs

McCay, Judge. The Act of 1868 providing for laying off the homestead, allows any creditor to appear and make certain objections to the proceeding. Literally, the only issue provided for is, upon the estimate of value by the Commissioners. But, in the nature of things, the objector may make a point upon any of the material statements necessary to be made; as residence, that applicant is the head of a family, etc. We have held, also, that, if an objector does appear and set up that he has such a debt as that the applicant can include certain specific property in his schedule, and the applicant joins issue and the case is tried, this concludes the parties. But this is only when the issue is made and accepted. Either party may object, since this question does not come within any of the provisions of the homestead. The homestead, when set apart, is subject to certain debts, nevertheless, and it is only when, by mutual consent, this question has been actually tried and passed upon by the Ordinary, that the judgment at all affects the right of the creditor to go on. [665] The judgment concludes on all the facts necessary to appear before the Court can give a judgment. But the title to the land, and whether, notwithstanding the judgment setting aside the homestead, the debt of the objector may not still, levy on it, is not an issue in the case, unless the parties actually make it, and it is decided. In that case, the parties have by mutual consent waived the objection to the jurisdiction and a judgment binds them. It does not appear that the plaintiff in this fi. fa. made any such objection. The presumption is that he only made the issues provided for by the statute, or necessary to appear before the homestead could be adjudged to be proper. Whether after the homestead is laid off it is subject to the plaintiff’s debt, is an independent question, and the laying off of the homestead does not decide it. Judgment affirmed.