Broome, trustee, v. Davis

Supreme Court of Georgia1891-07-13

87 Ga. 584

Summary · law.co

Holding. The judgment is reversed. A mortgagee cannot enforce a lien against homestead property based solely on the wife's title when the husband is in actual possession, as his visible occupancy constitutes constructive notice to all third parties of his homestead rights.

A husband and wife acquired property with homestead protections. The wife later obtained credit secured by a mortgage on the property, with the mortgagee taking a lien based on the wife's apparent title. The lower court upheld the mortgagee's rights. On appeal, the court examined whether a mortgagee can ignore the husband's actual possession and possession-based notice to deal solely with the wife's paper title.

The court held that property purchased with funds from previously exempted homestead property retains its homestead character, even when conveyed to the wife alone or jointly to both spouses. The court further determined that the husband's actual, visible occupancy of the property constitutes notice to the world of his rights in the homestead. A creditor or mortgagee cannot disregard this possession and claim protection as a good-faith party without notice simply because the paper title rests in the wife's name. The husband, as head of the family and actual occupant, has the right to be consulted regarding any claims against the property.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether homestead character transfers to replacement property purchased with homestead funds
Whether actual possession by a husband constitutes notice of homestead rights that binds mortgagees
Whether a mortgagee can ignore a husband's possession and rely on the wife's apparent paper title alone

Procedural posture

The case comes before the court on appeal from a lower court judgment that upheld a mortgagee's lien against homestead property titled in the wife's name.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bleckley, Chief Justice.

Before the translation of our brother Lumpkin to this bench, though his judicial accuracy was remarkable, ho shared in the fallibility which is inherent in all courts except those of last resort. Iu some rare instances he committed error, and the very last of his errors is now before us for correction. The facts of the case are correctly set forth in the reporter’s statement.

It is settled law that property paid for in full with other property previously set apart in due and proper manner under the homestead and exemption laws, takes the place of the latter, and is impressed with the homestead character. Mitchell v. Prater, 78 Ga. 767 ; Murray v. Sells, 53 Ga. 257 ; Cheney v. Rodgers, 54 Ga. 168, s. c. 59 Ga. 861 ; Morris v. Tennent, 56 Ga. 577 ; Dodd v. Thompson, 63 Ga. 393. This is true though the conveyance of the new property be made to the wife. Supra 78 and 53 Ga. Or’to the husband and wife. Supra 54 Ga. And the homestead right can be asserted against a purchaser with notice. Supra 53 and 54 Ga. A mortgagee stands on the same plane with a purchaser. Lane v. Partee, 41 Ga. 202.

Could the creditor and mortgagee of the wife, his rights having attached whilst the paper title to the land in controversy was in her, stand upon that title and claim protection as a mortgagee without notice, notwithstanding the husband was at the same time in actual possession of the premises ? Possession of land is notice to the world of whatever right or title the occupant has. Cogan v. Christie, 48 Ga. 585 ; Sewell v. Holland, 61 Ga. 608 ; Atkins v. Paul, 67 Ga. 97 ; Finch v. Beal, 68 Ga. 594 ; Loan Association v. Atlanta, 77 Ga. 496. In this State, notwithstanding his reduced importance as a domestic factor, the husband is still the head of his family, and though his wife may reside with him, she does not thereby divest his possession of the homestead and make the possession her own. Presumptively he is the owner. Primrose v. Browning, 59 Ga. 69 ; Neal v. Perkerson, 61 Ga. 346 ; City of Atlanta v. Word, 78 Ga. 276. Whilst for most purposes this presumption would be rebutted by the mere production of a conveyance from a third person to the wife, yet this alone should not excuse a stranger about to give her credit on the faith of the premises, from consulting the husband touching his rights as the actual occupant. His possession, to be of any force at all as notice, must be treated as directing inquiry to be made of himself, and not as a suggestion to go to his wife and deal with her upon what she might say, fortified by documents in her possession. So long as a man clings to his home in person, he has a right to be treated by-strangers as the head of the family, and as entitled to answer for it and himself touching his right to be there and remain. If the true title to the property is in him, though the apparent title be in his wife, he cannot be driven out as the result of contracta of sale or mortgage made by her without his consent, and with persons Who have not consulted him. In deed, lie would be incapable of effectually consenting to any sale or mortgage of homestead property, except with the approbation of the proper judicial officer. Code, §§2025, 5212, 5218. The judgment is reversed.