majority">Bleckley, Justice.

There are so many Hawks in the facts of this case, that the air is a little darkened. Only two of them need fix our attention : these are George F. and Warren. George F. had title to certain land, and procured 418 acres of it to be set apart to him as a homestead under the constitution of 1868. Because it was under mortgage for purchase money or for the removal of incumbrances, he could not hold it all in that way; so, in 1873, he filed his application in due form for the small homestead allowed by .section 2040 of the Code, claiming 60 acres of the 418 acres. The application was caveated by Warren, and while the caveat was pending, the mortgage fi-fa. brought the whole 418 acres to sale, and Warren became the purchaser. Shortly thereafter, and in the month of May, 1873, the litigation on the pending application for the 60 acre homestead came to an end, the application being allowed, and the proceedings going to record. Warren sold out his whole purchase, including, of course, such interest .as he acquired in the 60 acre homestead, to George F., giving the latter a bond for title and taking his nóte for the agreed purchase money. Judgment was obtained upon this note, and levied upon the tract of *418 acres, less a small parcel which had been disposed of satisfactorily to both parties. As the levy covered the 60 acre homestead, Thomas F. interposed his claim to that, setting up title to it by virtue of its having been set apart in the manner above stated. In 1877 the land leyied upon was all sold subject to the claim; and the question now is, *242whether the 60 acre homestead was subject to be sold under this levy or not.

It is said that the mortgage sale was for purchase money, and therefore the title passed by that sale to Warren Hawks, notwithstanding he bought with notice of the pending application for the small homestead. But the provisions of section 2040 of the Code were in force at the time of that sale, unmodified by the subsequent act of 1874, and until the latter act, there was, after the adoption of the Code of 1863, no distinction between debts for purchase money and any other debts, in reference to.the small homestead. 41 Ga., 180; 57 Ga., 181. Certainly the act of 1874 could not aid a sale that was made before the act was passed ; and, moreover, we think the act did not in any way affect exemptions which were set apart previously to its passage. Code, §§2047, 2048; 60 Ga., 173. By his purchase at the mortgage sale, Warren Hawks acquired no title to the 60 acre homestead which could prevail against the homestead proceeding then pending, for the reason that he purchased with notice that the application was pending. 40 Ga., 293; 44 Ga., 603. Not only did he have notice of it, but he was a party to it, having himself filed a caveat. The date being within the interval between the adoption of the Code of 1863 and the passage of the act of 1874, the mortgage, though for purchase money, could not sell the small homestead. As it could sell the large one, the debtor had a right to abandon that and take the small one. 50 Ga., 216, 584. And this was the course he pursued. The only very awkward fact in the whole case is that he now stands on the homestead right after having purchased from Warren Hawks without any express exception of the homestead from the terms of the purchase, the bond for titles which he took from Warren embracing the whole 418 acres comprehended in the first and larger homestead — the one which was abandoned. Holding Warren’s bond to make title to the whole, and the debt created for purchase money when the bond was given being unpaid, he sets *243up, in resistance of the collection of that debt, the small homestead as set apart under the proceedings which were pending when Warren bought at the mortgage sale. There is no doubt that if the adverse title which he now asserts was other than a homestead or trust title, it would not prevail; but in standing upon the homestead right in the present claim, he represents his family, not himself, and the case is therefore to be looked at as if the family were the party on the record instead of him! What he may have done to estop himself personally after their rights became vested, cannot be used to bar them. We think the facts of the case protect them, and that the court erred in charging the jury, and in not granting a new trial.

Judgment reversed.

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