Hines v. Sam Weichselbaum Co.

Hodges, J. A promissory note expressly waiving “all homestead and exemption rights under the laws of this State” is effective as a waiver of such rights except as to wearing apparel and not exceeding three hundred dollars worth of household and kitchen furniture and provisions. Civil Code, §§ 3413, 6584, 6586. The waiver referred to in Flanders v. Wells, 61 Ga. 196, where it was decided that a mortgagor could waive his right to the short homestead in the property mortgaged, was made prior to the adoption of the constitution of 1877, which, while authorizing such waivers, makes an express exception as to “wearing apparel and not exceeding three hundred dollars worth of household and kitchen furniture and provisions.” Unless hogs are “provisions,” within the meaning of the exception quoted above, the waiver applies to hogs; and, under the rulings of the Supreme Court, such animals are not provisions. In the case of Wilson v. McMillan, 80 Ga. 733 (6 S. E. 182), it was held that a milch cow is not “provisions.” It was there said: “We think the word provisions, as used both in the constitution and the statutes of this State, means something in a condition to be consumed as food, such as meal, flour, lard, meat and other articles of that kind — articles that need no change in cooking. The statute seems to have drawn a distinction between provisions 608 and hogs, cows, etc.” In a subsequent decision this definition was said to be “too narrow,” hut the court said that it was “good and sound authority for the holding that a milch cow is not provisions.” Cochran v. Harvey, 88 Ga. 352, 355 (14 S. E. 580). It follows that the judge of the city court in this case erred in holding that the hogs levied on were not subject to the execution; and the judge of the superior court did not err in sustaining the certiorari. Judgment affirmed.