Ragan, Malone & Co. v. Taff

Evans, P. J. (After stating the foregoing facts.) The constitutional and statutory rights of homestead and exemption are intended to reserve to a debtor, for a limited time, the use and enjoyment of a certain amount of his property from the processes of his creditors. It may not be necessary that an applicant for a homestead be a debtor; yet, as the homestead exemption only serves as a barrier against creditors, it is hardly supposable that one who does not owe any debt will ever apply for an exemption or homestead'in his property. In making provision for notice to creditors, both the constitution and statutes contemplate that the applicant is in debt, and is seeking protection from his creditors. Under the constitution of 1868 the debtor could make a special waiver, but was not allowed to defeat his right of homestead by a general waiver. A general waiver was pronounced void as being opposed to public policy, in Stafford v. Elliott, 59 Ga. 837. The constitution of 1877 (Civil Code, § 5914) declares that “the debtor shall have power to waive or renounce in writing his right to the benefit-of the exemption provided for,” except $300 of household and kitchen furniture and provisions. It is further provided in this constitution (Civil Code, § 5916) that the “debtor” shall have au [837] tliority to waive the benefit of the exemption known as the short homestead. The General Assembly at its first session after the promulgation of the constitution enacted that “Any debtor may, except as to wearing apparel and three hundred dollars worth of household and kitchen furniture, and provisions, waive or renounce his right to the benefit of the exemption provided for by the constitution and laws of this State, by a waiver, either general or specific, in writing, simpty stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness, or contemporaneously therewith or subsequently thereto in a separate paper.” Civil Code, § 2863. It will thus be seen from the object and purpose of the homestead and exemption allowance, as well as from the phraseology of the organic and statute law, that it is essential that the relation of creditor and debtor shall subsist before a valid waiver of homestead shall be effective. A mere written declaration to the public, or to one not a creditor, that the declarant waives all benefit of the homestead laws, would he no more effectual to deprive him of afterwards changing his mind than if the renunciation was of any other law designed for individual protection and benefit, such as the usury law, the statute of limitations, and the like. Such a renunciation would be purely voluntary. In order to bind the debtor by the waiver he must either have incurred the debt or contracted for it at the time of the waiver. Suppose a debtor gave his note to his creditor and in the note he renounced his right of homestead generally, without reference to the particular debt evidenced by the note, can any one contend, should the maker subsequently become indebted to the payee upon a distinct matter, that the homestead waiver in the note would bar the debtor of his right to a homestead as against the subsequent debt? We think not. We do not mean to say that the debtor must have received the entire consideration of the debt before he can waive his right of homestead, but only that the relation of debtor and creditor with respect to a specific debt must exist between the parties before one can hold the other bound by his waiver. To illustrate, if a customer arrange with his merchant that the latter shall sell to him a certain amount of goods, and give his obligation therefor, containing a waiver of homestead, such waiver would prevent the customer from asserting against his contract with the merchant a homestead subsequently set aside, though the goods were [838] furnished under such contract after the execution of the waiver. The case at bar is not like this illustration. , Here a retail merchant gave to a wholesale merchant a statement of his financial condition, which contained, a general waiver and renunciation of his homestead rights. The retail merchant did not order the goods at the time he gave this statement, nor did the wholesale merchant contract at that time to sell him any goods. There was absolutely noprivity of contract between them. The goods were sold six months-thereafter on open account, and we do not think the homestead waiver in the statement prepared for credit barred the retail merchant from applying for a homestead as against debts subsequently contracted. Judgment affirmed. All the Justices concur, except