Benefit must be set apart.

- In order for an exemption of the $300.00 of personal property allowed to a debtor under the provisions of the Constitution and O.C.G.A. § 44-13-40 to be effectual as against a waiver thereof, the debtor must have such personal property set apart to the debtor as exempt, in the same manner that the homestead allowed by the Constitution is set apart. Sasser v. Roberts, 68 Ga. 252 (1881); Miller v. Almon, 123 Ga. 104, 50 S.E. 993 (1905).

The word "provisions" means something in condition to be consumed as food, such as meal, flour, lard, meat, and other articles of that kind. Cochran v. Harvey, 88 Ga. 352, 14 S.E. 580 (1892); Hines v. Sam Weichselbaum Co., 18 Ga. App. 606, 89 S.E. 1095 (1916).

Cotton is not "provisions" within the meaning of O.C.G.A. § 44-13-40. Posey v. Rome Oil & Fertilizer Co., 157 Ga. 44, 121 S.E. 205 (1923). See also Butler & Heath v. Shiver, 79 Ga. 172, 4 S.E. 115 (1887).

Money.

- Money, though less in amount than $300.00 which might be readily converted into any one of the classes of property mentioned in the Constitution and laws as exempt, does not belong to either of them, and is not protected against the waiver. Posey v. Rome Oil & Fertilizer Co., 157 Ga. 44, 121 S.E. 205 (1923). See also Arnwine v. Beaver, 134 Ga. 377, 67 S.E. 937 (1910).

Waiver in application for credit.

- A general waiver of homestead under O.C.G.A. § 44-13-40 only operates in favor of the specific liability referred to in the waiver of obligation containing the waiver; a waiver of all homestead rights, in an application for a general line of credit, is not effectual to bar the debtor's right to homestead as against a debt thereafter contracted. Ragan, Malone & Co. v. Taff, 134 Ga. 835, 68 S.E. 579 (1910); Frank & Co. v. Weiner, 167 Ga. 892, 147 S.E. 51 (1929).

Waiver in financial statement.

- A waiver of homestead in a requested statement as to the financial condition of the head of the family was made contemporaneously with the offer to buy and its acceptance, and was a valid contract of waiver. Pincus v. S. H. Meinhard & Bro., 139 Ga. 365, 77 S.E. 82 (1913).

Waiver in promissory note.

- The right to a homestead exemption may be waived by a provision in a promissory note; and if a judgment based on a homestead waiver note is rendered at any time prior to an adjudication in bankruptcy, the lien of such judgment attaches to the homestead exemption and the bankruptcy proceedings do not divest or affect the lien of such judgment. Bell v. Allied Fin. Co., 215 Ga. 631, 112 S.E.2d 609 (1960).

Where homestead already set apart.

- A homestead which has been regularly set apart can neither be waived nor renounced by the head of the family. Russell v. Gilliland, 19 Ga. App. 676, 91 S.E. 1065 (1917).

Waiver binds family.

- A husband may waive the right of homestead in his property as against a certain debt, and his waiver will bind his family, although an application for homestead may at the time be pending. Jackson v. Parrott, 67 Ga. 210 (1881).

Waiver of exemptions is not void but voidable, and therefore a defendant's disclosure statement disclosed a valid, enforceable security interest in the debtor's homestead exemption. Caldwell v. Dixie Fin. Corp., 15 Bankr. 811 (Bankr. N.D. Ga. 1981).

No estate conveyed.

- The waiver of homestead does not convey an estate. Norris v. Aikens, 155 Ga. 488, 117 S.E. 248 (1923).

The waiver of an exemption is somewhat akin to conveying property. However, a waiver of exemption although in the nature of a conveyance does not convey title or create a lien. Mims v. Dixie Fin. Corp., 426 F. Supp. 627 (N.D. Ga. 1976), overruled on other grounds, Hamilton v. Southern Disct. Co., 656 F.2d 150 (5th Cir. 1981).

Disposal of money by trustee in bankruptcy.

- Where a trustee in bankruptcy paid to the bankrupt the amount set apart as exempt under O.C.G.A. § 44-13-40, as soon as set apart by the referee, creditors could not require the trustee to deposit all moneys received as trustee in a bankruptcy depository, though, where an exemption is set apart and money is ordered paid, it ought to remain long enough in the hands of the trustee to allow claimants an opportunity to be heard. In re Barnett, 214 F. 263 (N.D. Ga. 1914).

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 (1880).

Validity of waiver of exemptions and security interest prior to filing for bankruptcy.

- Until such time as a debtor files a petition in bankruptcy and takes active steps to avoid a lien which impairs an exemption of the debtor, a waiver of exemptions is valid and a security interest in those exemptions is also valid. Caldwell v. Dixie Fin. Corp., 15 Bankr. 811 (Bankr. N.D. Ga. 1981).

Priority.

- An assignment of an exemption, before an adjudication in bankruptcy, prevails over a sale after it is set apart. J. Saul & Co. v. Bowers, 155 Ga. 456, 117 S.E. 86 (1923).

A waiver of the homestead and exemption allows the creditor to be preferred over general creditors. An assignment may allow the creditor to be preferred over both creditors holding homestead waivers and creditors with subsequent assignment. Elzea v. National Bank, 570 F.2d 1248 (5th Cir. 1978).

While pending the bankruptcy proceeding the creditor cannot maintain a suit at law against the debtor to obtain a judgment against the debtor in personam, but where claim of a creditor is evidenced by a promissory note in which the debtor waives the exemption of homestead, the debtor is estopped by the waiver to claim an exemption as against the creditor, and the latter has an equitable remedy to obtain a judgment in rem against the exempted property, subjecting it to the claim; and where the property is of personalty of a perishable nature, or such that it will be destroyed in the use, the court may enjoin the debtor from disposing of the property, and appoint a receiver to take charge of it until a judgment in rem can be obtained. Nelson v. Brannon, 182 Ga. 195, 184 S.E. 870 (1936).

The creditor has no rights unless the debtor goes into bankruptcy and requests that the homestead and exemption be set aside. Elzea v. National Bank, 570 F.2d 1248 (5th Cir. 1978).

Cited in Levinson v. J.O.S. Rosenheim Shoe Co., 143 Ga. 584, 85 S.E. 764 (1915); Sanders v. GMAC, 43 Ga. App. 374, 158 S.E. 646 (1931); Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99, 169 S.E. 700 (1933); Wilbanks v. Wardlaw, 50 Ga. App. 495, 178 S.E. 466 (1935); Pass v. Pass, 195 Ga. 155, 23 S.E.2d 697 (1942); Lowe v. Termplan, Inc., 144 Ga. App. 671, 242 S.E.2d 268 (1978).

Am. Jur. 2d.

- 31 Am. Jur. 2d, Exemptions, § 143 et seq. 40 Am. Jur. 2d, Homesteads, § 187 et seq.

C.J.S.

- 40 C.J.S., Homesteads, §§ 108, 119 et seq.

ALR.

- Estoppel to claim, or waiver of, homestead by direction of judgment debtor to levy on real estate, 101 A.L.R. 851.

Recital in deed or mortgage disclaiming homestead as respects property described or affirming homestead in other property, 128 A.L.R. 414.