Davis v. Taylor

¶11. The execution, under which the property now in controversy and which had been set apart as a homestead was sold, was issued from a judgment rendered in a proceeding to foreclose an attorney’s lien upon such property. It appears that upon the trial of the proceeding to foreclose said lien, the jury rendered a verdict in favor of the plaintiffs for a given amount, and also found that the property now in controversy was subject to the lien claimed; and that thereupon judgment was duly entered up for said sums, to be levied and realized upon the property in question, describing it, and that the attorney’s lien for said amount be set up and established against said real estate, and ordering that execution issue accordingly. In pursuance of this verdict" and judgment, execution was issued, directing the sheriffs, etc., that of the goods and chattels, lands and tenements of (the defendants) consisting of a certain tract of land (describing the land upon which the lien was established), they cause to be made, etc. This execution was levied on the land described therein, and the land was duly sold under and by virtue of such levy to Mrs. Alice J. White. Upon the trial of the present action, the plaintiff objected to the admission in evidence of the deed from the sheriff to Alice J. White to the land in dispute, on the ground that it having been shown that the property in question had been, before the date of the judgment, set apart as homestead property, it was necessary, in order to show that the sale was legal, to prove affirmatively that .the plaintiffs in execution, their agent or attorney, had filed with the sheriff an affidavit in accordance with section 2850 of the Code of 1895, etc.; and error is now assigned upon the overruling of such objection and the admission of such deed.

¶2The section referred to, so far as material here to be quoted, provides that where a homestead exists and the plaintiff in execution is seeking to proceed with his execution, and there is no property except the homestead on which to levy, upon the g-round that bis debt falls within some one of the classes for which the homestead is bound under the constitution, it shall and may be lawful for such plaintiff, his agent or attorney, to "make affidavit before any officer authorized to administer oaths, *372that to the best of his knowledge and belief the debt upon which such execution is founded is one from which the homestead is not exempt; and it shall be the duty of the officer in whose hands the execution and affidavit are placed, to proceed at once to levy and sell, as though the property had never been set apart; the right being reserved to the defendant to deny the truth of the plaintiff’s affidavit by counter-affidavit. Undoubtedly such an affidavit is indispensable to the legality of a sale of homestead property, made under execution issuing from a general judgment against the defendant. But it has, in effect, been ruled by this court, that where the execution and other papers upon which it was predicated show that the debt falls within some one of the classes for which the homestead is bound under the constitution, the filing of the affidavit required by section 2850 of the Civil Code is not necessary to the validity of a levy and sale under such execution. In the case of McDaniel v. Westberry, 74 Ga. 380, it was held that where the rules nisi and absolute and the execution set out that the debt was for purchase-money, it was unnecessary to file affidavit; that where rules nisi and absolute showed waiver of homestead in mortgage, the affidavit was unnecessary. (McLaws v. Moore, 83 Ga. 177.) Where there was a bond for title, judgment for purchase-money, and deed filed for levy, the affidavit was not required. Perdue v. Fraley, 92 Ga. 780. The rule deducible from these adjudications seems to be, that if the execution and papers upon which it is predicated show upon their face that the homestead property is, under the law, subject, the reason for the affidavit ceases, and that therefore the latter is not requisite to a valid levy and sale. Tested by this rule, -we think the sale made of the homestead property in the present case was not invalid because of the fact that the plaintiffs in execution omitted to make the affidavit contemplated by the statute, if such realty was lawfully subject to the judgment under which it was sold; which is a question with which we shall hereafter deal. As we have seen, the verdict rendered in the proceedings to foreclose the lien declared specifically that the realty in dispute was subject to such lien, and the judgment entered upon this vérdict and the execution issued in pursuance of the *373judgment specifically directed the- sale of this particular realty for the purpose of satisfying the amount adjudged to be due upon the lien. By a judgment all questions at issue, or which might properly have been raised in the proceeding upon which such judgment was rendered, are adjudicated. Where, therefore, it is declared in the judgment itself that a given piece of property, which had been set apart as a homestead, was subject to the lien of such judgment, such judgment necessarily carries with it the presumption that the debt upon which the judgment was founded was one to which the homestead was subject under the constitution, or that for other lawful reason the property so set apart was subject. Hence we conclude that, under the reasoning of the authorities to which reference has been made, it was not essential to the legality of the sale of the property in controversy that the plaintiffs in execution should have made and filed with the officer the affidavit contemplated by the statute, prior to the time of the making of the levy.

¶32. It appears that in 1877 the plaintiff (Davis) conveyed the property in dispute to one Morris as security for a debt. On or about the 27th of May, 1882, Davis employed Jackson & King as attorneys at law, under a stipulated fee for such service, to sue for and recover in his behalf from Morris the tract of land in question; and in pursuance of such employment, on or about the 3d day of June, 1882, they filed a bill in equity in behalf of Davis, in Fulton superior court, to recover said land, such bill containing proper prayers for reconveyance, etc. This suit resulted in a decree, rendered on October 6, 1883, in favor of Davis, requiring Morris to reconvey said real estate to Davis upon the payment of a given sum. In the meantime, to wit August 14, 1882, Davis had filed an application for a homestead, in which was included the property involved in the litigation between Davis and Morris, and on September 22, 1882, such application for homestead was approved and the property set apart. Pending the application for homestead, the attorneys who had represented Davis in the litigation between himself and Morris, knowing, as the evidence in the present record shows, of the pending application for a homestead, and by reason thereof wanting “ a showing for their fee (contracted *374for in the Morris litigation) with homestead waived,” procured from Davis his promissory note containing a waiver of “all homestead and exemption rights . . as against said note or any renewal thereof.” It further appears that, in addition to taking the note above referred to, Jackson & King-filed and had recorded, in due time, in the office of the clerk of the superior court of Fulton county, a claim of lien upon the land which they had recovered from Morris for Davis, and that upon this claim of lien they instituted suit against Henry Davis, Sylvia Davis, and Joel R. Davis, to foreclose the alleged lien, and that after rule nisi had been granted upon this proceeding, reciting the material portions of the petition, and directing Henry Davis to pay into court, by the first day of the next term, the principal, interest, and costs due on said claim (for which the lien was sought to be foreclosed), or show cause to the contrary, and also ordering, Joel R. Davis and Sylvia Davis to show cause why the claim of lien should not be foreclosed against any interest which they might have in the land, and after said defendants had appeared and defended said foreclosure proceedings, the verdict and judgment, under which the sale now attacked was made, were rendered.

¶4Whether the plaintiff in the present action is concluded by the judgment rendered in such foreclosure proceedings is a question which, under the view we take of the case, it is not necessary to decide. Pending the application for homestead the attorneys were engaged in prosecuting for Davis a proceeding to recover for him title to the property covered by the application; and while it appears that the application was approved and the land in controversy set apart as a homestead, the litigation between Davis and Morris concerning the property so set apart did not result in a decree fixing the title in Davis until October 6, 1883. The rule is well established, that the right to homestead or exemption is personal to the debtor, the owner of the property, and its exercise or non-exercise is subject to his decision; that he can waive the right as to specific property, and, under the constitution of 1877, can affect *375all his property (save the small amount expressly excepted in the constitution) by a general waiver. Broach v. Powell, 79 Ga. 81, and cases there cited. Such waiver may be made even while an application for homestead is pending, and is effectual although the debtor in whose favor such waiver was made knew of the pendency of such application. No right adverse to the power of the head of the family over his own property is vested in the family until the homestead is set apart. Smith v. Shepheard, 63 Ga. 454; Jackson v. Parrott, 67 Ga. 210. It appears from the facts in this case that the debt for which the lien was established was the identical debt as to which Davis had waived his right to homestead or exemption pending the application for such homestead; and we think that the note containing such waiver, although in the foreclosure proceedings no reference was made thereto, or to the fact that the land had been set apart, was competent evidence in the present action, in connection with other facts, to show that as to this debt the homestead and exemption rights had been waived, and that therefore the property set apart as a homestead was subject to the lien established. Indeed this court has held that, under the constitution of 1877 and the act of 1878, a written waiver of exemption and homestead is good inter se, without having the same alleged in the declaration or summons, judgment or execution, and is, after judgment, provable aliunde, whether the lien of the judgment be general or special, and whether the waiver be written on the contract or obligation, or on a separate paper. Flemister v. Phillips, 65 Ga. 676. We conclude, therefore, that the judgment foreclosing the lien was valid and binding upon the property set apart as a homestead, and that the sale under the execution issued therefrom was not illegal for any reason set out in the pleadings of the plaintiffs.

¶53. It follows that the court committed no error in refusing to grant a new trial. Let the judgment of the court below be

¶6Affirmed.