Connally v. Hardwick

Bleckley, Justice. 1. The statute gives the option of the constitutional homestead and exemption, or the exemptions which the constitution of 1868 found already established. Code, §2032. It was the purpose of the constitution to offer larger and more liberal exemptions than before prevailed, not to abrogate or supersede the smaller ones where these might prove satisfactory or. be preferred. The system contemplated was alternative, not exclusive. The well remembered history of the times, together with the contemporary legislation, may suffice as authority for this interpretation. 2. The husband is not complaining that the wife interfered and secured the exemption over his objection and contrary to his wishes. His acquiescence ought to be presumed so long as lie is silent, for the statute looks to her as a proper person to move in the matter where he refuses. Code, §2041. His refusal to move does not imply an unwillingness for her to do so, but rather the contrary. He may want to open the way for her or her friends to act, instead of taking the responsibility upon himself. If he had any real objection, he could and would find means to make it effective. 3. At the time this exemption was secured, (January, 1876,) neither notice to creditors, nor any publication was necessary in such a case. Code, §§2041, 2042. The quantity of land owned by the debtor not being in excess of the statutory allowance, no survey or plat was requisite. 20 Ga., 200; 22 Ib., 168; 25 Ib., 224. As to insolvency of the debtor, there is no requirement that it should affirmatively appear as a condition precedent to the exemption. 4. The act of 1874 subjects the property to claims for the purchase money, and for taxes, but neither that act nor any other, renders it subject to be sold for the repayment of money which had been expended upon it in erecting improvements, or in procuring work and labor, before the exemption right was asserted. [505] 5. The wife and family are the chief beneficiaries contemplated by the homestead and exemption laws. Grant that the legal estate does not vest in the wife, still she has such an interest in the use and enjoyment of the property as will entitle her to protect it from levy and sale by the interposition of a claim, in her own name, when it is under levy and about to be sold away from her by a creditor of the husband. Of course, she cannot do this until after the legal steps to set it apart and secure it as exempt property have been taken. In this case, all had been done which the law required. Judgment affirmed.