Drinkwater v. Moreman

Bleckley, Justice. 1. The eviction of Moreman took place under a judgment lien against the land, which existed when Drinkwater con [397] veyed with full warranty of title. There was thus a breach of the covenant of warranty. 51 Ga., 81. 2. The covenant itself was older than the constitution of 1868, giving homestead and enlarged exemptions, and though the breach did not become complete until after the constitution took effect, the homestead right is subordinate to the right of the covenantee as a creditor. The material date, on the question of impairing contracts by after legislation, is the date of the contract, not the date of breaking or violating the contract. 51 Ga., 551. 3. Before Moreman’s eviction he became bankrupt, and his assignee offered the land for sale, and it was bid off for More-man’s wife; but the sale was never consummated; and More-man was left to keep the land, it being of less value than the maximum exemption of realty to which he was entitled in bankruptcy. The form of assigning it to him as exempt may have been deficient, but the substance was not. Now, a bankrupt gets no new title to his property by its being assigned or set apart to him as exempt. He holds it after-wards by the very same title by which he held it before. So that at the time of his eviction, ho held the land under the deed from Drinkwater containing the covenant of warranty. By the loss of it, in consequence of the old judgment lien, damage resulted to Moreman himself, not to his wife or his assignee in bankruptcy. The decree is correct, though the view we take of the legal theory on which it rests may not be precisely the same as that which the bill presents. Indeed, we have no doubt a recovery could have been had at law on the covenant, and that to satisfy it the Drinkwater homestead could have been levied upon and sold without resort to equity. But no question was made as to th a forum and the time for making it has passed. Judgment affirmed.