Collier et al., executors, vs. Simpson et al.

Supreme Court of Georgia1885-03-17

74 Ga. 697

Summary · law.co

Holding. The court affirmed the judgment below, holding that a homestead exemption granted by a bankruptcy judge or register is entitled to the same protection against levy and sale as an exemption set apart by a state court ordinary, even when property has been levied on prior to the bankruptcy discharge.

The court addressed whether a homestead exemption granted in bankruptcy court receives the same protection as one set apart by a state court ordinary (judge). The case turned on the earlier decision in Ross v. Worsham, which established that exemptions granted by a bankruptcy judge or register are just as secure against levy and sale as exemptions set apart through state court proceedings. Although property had been levied on before the bankruptcy discharge, the court found this prior levy did not defeat the exemption. The court acknowledged some conflicting language in prior decisions but concluded that sound principle required homesteads and exemptions granted in bankruptcy to be treated identically to those granted by state ordinary courts, regardless of timing of the levy.

The debt at issue was a mortgage securing a fee simple interest, contracted after Georgia's 1868 Constitution. The court held that such a debt cannot reach exempted property unless it falls within constitutional exceptions—such as purchase money, removal of encumbrances, or other specified grounds. The court found the legal services rendered here did not constitute removal of an encumbrance within the constitutional meaning, as only money actually advanced to remove an encumbrance qualifies. Therefore, the exemption protected the property from this debt.

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

Key issues

Whether exemptions granted in federal bankruptcy court receive equal protection to state-court exemptions
Effect of a pre-bankruptcy levy on the validity of a subsequently granted exemption
Whether attorney services qualify as removal of encumbrances under state constitutional protections

Procedural posture

The case was appealed to review a judgment from a lower court that upheld an exemption claimed in bankruptcy proceedings against a post-bankruptcy creditor claim.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jackson, Chief Justice.

On a careful examination of the numerous cases cited by the learned and able counsel for plaintiffs in error in the Georgia reports touching this question made by this record, we find ourselves unable to take the case at bar without the principle ruled in Ross, administrator, vs. Worsham, 65 Ga., 624, decided by Judge Hall, now of this bench, as judge pro hacvice below, and affirmed unanimously by this court, tho lato Justice Crawford delivering tho opinion. That principle is that when a homestead and exemption in the bankrupt court is granted by the judge or register, such exemption is no more subject to levy and sale Ilian if it had been set apart by the ordinary having jurisdiction thereof. In that caso, as in this, the property had been levied on prior to tho adjudication and discharge of the bankrupt, and the facts are almost, if not completely, the same as this record develops, and substantially they are the same.

It must be conceded that our reports show some dicta and perhaps one or two decisions on kindred points which might logically lead to a different result; butitis believed that principle, practical principle, must bring us to the affirmance of Ross vs. Worsham and the overruling of all dicta, and, if there be any, all decisions to the contrary. Why should the bankrupt go into the state court of ordinary to do what the bankrupt court was expressly em powered to do by the then, bankrupt law ? Notwithstanding levy, notwithstanding sale, homestead of realty and exemption of personalty could have been set apart by the ordinary in the thing levied on before sale, and in the money in court after sale. If, therefore, the principle be sound that the exemption by the judge or register in the bankrupt court be as efficaoious as if made by the ordinary, the levy is not in the way; and, as in Ross vs. Worsham, the levy antedated the adjudication, and the principle was there ruled in the face of that fact, it can mean nothing less than that the exemption is good, and the judgment on a debt contracted after the constitution of 1868 cannot touch it unless it be for purchase money or removal of encumbrances or other exception in that constitution.

In this case, the debt is not such a one as comes up to removal of encumbrance m the sense of the constitution, but it is a mortgage to secure a fee contracted after the constitution of 1808, as was the debt in Ross vs. Worsham; and even if the services of the counsel were rendered in a case which involved the removal of an encumbrance on the land, those services are not the removal thereof in the sense of the constitution, as money advanced to remove it would be.

I must say for myself that. I am not as clear in my conviction of the law of this case as I am usually in the opinions I write, because I cannot reconcile all the court has said on the subject to my own perfect satisfaction; but as the court below has so construed the law of this case, and as my brethren here agree with that court, and as I cannot take the case out of Ross, administrator, vs. Worsham, it is the best conclusion I can reach to hold the judgment below to be the law of the case.

Judgment affirmed.