Cheney v. Rodgers

McCay, Judge. 1. The sale of a homestead ought only to be for reinvestment, and it is a great defect in the law that the ordinary is not required to see that the reinvestment is made. The Code, section 2047, .is express that the proceeds of the sale shall go-to the use of the debtor’s family. This is the object of the homestead provision ; and on a sale of the homestead as laid off, we are clear that the reinvestment ought to be for the same purposes as the original appropriation. It seems, in this case, to be unquestionable that the homestead as originally laid off was sold and the proceeds invested in the property in dispute. It is very plain, too, that upon the face of the deed this fact distinctly appeared. The deed, it is true, was in the former part of it simply taken to the husband and wife, but at the foot of the deed, and forming a part of the instrument, it was distinctly stated that this land was bought with the proceeds of the .sale of the homestead, aá laid off under the judgment of the ordinary. This would have charged the grantees of the deed with the obligation to hold it for the .same uses as the homestead, to-wit: not for the husband and wife alone, but for the family, and put it instead of the homestead, and anybody dealing with them, with notice, would .stand as they did, and deal with it as homestead property : .See Murray vs. Sells, 53 Georgia, 257. 2. The only question in this case is the question of notice. Was the recital in the deed to the husband and wife notice to :the defendants in the action below? It is a well settled rule ■that a party is charged with notice of recitals in any deed under which he claims title : Jumel vs. Jumel, 7 Paige R., 591 ; Harris vs. Fly, 7 Paige, 421 ; Moore vs. Bennet, 2 Chan. Cas., 246; Walker’s Chancery R., (Michigan) 463. It is absolutely necessary for the defendant to rely on the deed to the husband and wife. He claims under that deed. ■Can he claim under it and deny a fact recited in it? We think, therefore, the defendant, and all claiming under the deed to the husband and wife, are charged with notice of the 171 recitals in that deed. If he did not in fact see it, his own negligence is the cause of it. As, under this deed to the husband and wife, the property was a homestead, it could not be sold without the consent of the ordinary. That is a sine qua non, and the purchasers got only a voidable title. For this reason we think the verdict wrong. Judgment reversed.