Lowry v. Parker

Bleckley, Chief Justice. The facts appear in the official report. Whilst a mortgage deed infected with usury is not void as a lien [343] upon the property (Hodge v. Brown, 81 Ga. 276), any waiver of homestead or exemption contained in it is void as against the homestead or exemption right. Small v. Hicks, 81 Ga. 691; Cleghorn v. Greeson, 77 Ga. 343. True, it may become too late to insist that the debt is contaminated, as by allowing judgment of foreclosure to be taken without setting up the usury or making it appear, McLaws v. Moore (ante, 177); but here the usury was set up and established in the foreclosure proceeding, and recovery was had only for the amount lawfully due with the usury purged out. This recovery is not inconsistent with the invalidity of the mortgage in so far as it waived homestead, etc., but entirely consistent therewith. Indeed, the invalidity follows as a direct conclusion from the adjudication that the debt and the mortgage security were infected. That a void waiver would become valid by purging out the usury when the judgment of foreclosure was rendered, is a proposition than which none could be more unsound. The mortgage is good as a lien, but there has been no adjudication and can be none that its lien will prevail over the homestead and exemption right. [With respect to that right, it stands just as it would had no waiver been inserted in the mortgage deed. Until the right expires or has run out, there can be no enforcement of the lien, but after that event it can be enforced. Judgment affirmed.