Taliaferro v. Pry

LOCHRANE, C. J.

It appears from the record in this case that John O. Pry rented lands from Taliaferro, the plaintiff in error, executing a mortgage upon all the growing crops and personal property belonging to him, for the security of the payment of the rent and a mortgage waiver of the benefit of all exemptions and homestead laws.

The plaintiff in error, by distress-warrant, levied upon the personal property of John O. Pry, consisting of two mules, cotton, com, fodder, etc. After the distress-warrant was levied, the wife of John O. Pry applied, by her next friend, to have the property thus levied on' set apart to her, under the homestead laws of this State. When the case came before the Ordinary, Taliaferro objected to the application, alleging the facts herein before recited. The Ordinary sustained the objection, holding the landlord’s lien to be paramount, under the facts of this case. An appeal was taken to the Superior Court. Upon the hearing of the appeal, the plaintiff in error demurred to the objections filed in this cause in the application. The Court sustained the demurrer on the grounds that they were insufficient, in law, to bar the plaintiff, reversing the order of the Court of Ordinary and remanding the case back to be disposed of in conformity to the judgment of the Court below, and this judgment is assigned as error.

1. By the well-established authority of this Court, in 41st Georgia Supreme Court Reports, and previous decisions, the landlord’s lien is paramount to the right of the husband or the wife for exemption of personalty, under the homestead *624 laws. In the case of Phelps v. Porter, 40th Georgia Reports. 485, property levied on under mortgage fi. fa., and claimed by the wife'under the Homestead Act was held by this Court to be sübject to the levy, and could not be taken *under the homestead laws by the wife or children. •! Judge McCay, delivering the opinion, announced the brief but pregnant principle of common justice and legal right when he said, “there is no equity in ‘ applying property not paid for to the use of even the wife and children.” It would be manifestly unjust, and violative of the rules of the law to permit parties to use the property of another under a contract for rent and then claim the proceeds, either in kind or in cash, otherwise invested, without first settling with the landlord for the use- and occupancy of his property. And. we, therefore, hold that a landlord’s lien is paramount for rent of the premises, and the Court below erred in sustaining the demurrer to the objections filed in this case.

2. For myself, I may remark, in relation to the written waiver, by the husband, in the execution of the mortgage, that the wife, in becoming the applicant for the exemption, is only remitted under the provisions of the law to the same position the husband occupied, and his waiver is binding on "all parties who claim by, through, or under him; and such waiver before filing the application for exemption is as binding upon her, standing in his shoes as the head of the family, as if the husband himself had filed the application; the law, in its generous provisions of homestead, neither in spirit nor letter, confers power or opportunity for committing fraud.

Judgment reversed.