Moughon v. Masterson

Bleckley, Judge. The wife’s plea negatives, expressly, all the objects for which the homestead can be incumbered under the constitution of 1868 : Code, §5135. Assuming the plea to be true, the mortgage cannot be enforced against the property, while the homestead right is in existence. It may be that it can, after the right has terminated; but if so, it is because the mortgage binds whatever is beyond the homestead estate proper. Whether it does so or not, need not now be decided. Granting that it does, the choice would lie between rendering a judgment of foreclosure now, with a stay of sale until the homestead right is extinct, (45 Ga., 631), and postponing foreclosure, as well as sale, until after the happening of that contingency. At all events, if the matter of the wife’s plea is supported by evidence at the trial, the mortgage cannot be foreclosed against the homestead estate, either now or hereafter. It was error to strike the plea. Judgment reversed.