Cheatham v. Jones

Pearson, C. J. The question presented by the case is this : Has a mortgagor in possession a right to a homestead, as against all other creditors, save the creditors secured by the mortgage ? We concur in the opinion of his Honor, that the homestead is exempt from sale under execution, and that the-mortgagor, although he holds subject to the mortgage debt,.. holds his homestead paramount to the other creditors. s A mortgage is a mere incumbrance upon a man’s land, given as a security for the debts therein set out; and if he can discharge the incumbrance by the sale of the land outside of his homestead, or in any other way, creditors who-: are not secured by the mortgage, have no ground upon which to deprive him of the homestead secured by the Constitution. We are of opinion that a debtor is entitled to a homestead in an “equity of redemption,” subject to the mortgage-debts, just as a purchaser in possession is entitled to a homestead, subject to the payment of the purchase money... No error. Per Curiam. Judgment affirmed./