Methods of bringing homestead to sale.

- Whenever it is sought to bring any part of a homestead to sale under a claim or debt for which it is contended the homestead is liable, such must be done in the manner provided by O.C.G.A. § 44-13-60. Martin v. Davis & Co., 104 Ga. 633, 30 S.E. 753 (1898).

Section not applicable to short homestead.

- The affidavit required by O.C.G.A. § 44-13-60 applies only to homesteads set apart under the provisions of O.C.G.A. § 44-13-5 and not to property sought otherwise to be exempted. Marcrum v. Washington, 109 Ga. 296, 34 S.E. 585 (1899).

Section inapplicable to distraint for rent.

- O.C.G.A. § 44-13-60 does not apply to arresting and stopping the process of distraints for rent. Huckaby v. Brooks, 75 Ga. 678 (1885).

Necessity for affidavit.

- In order to show that a sale was legal, it is necessary to prove affirmatively that affidavit under O.C.G.A. § 44-13-60 was in fact filed with the sheriff before the sale was made. Davis v. Jones, 95 Ga. 788, 23 S.E. 79 (1895); Smith & Hollis v. Youngblood, 23 Ga. App. 640, 99 S.E. 143 (1919).

Contests of affidavit.

- Before a homestead can be levied on under O.C.G.A. § 44-13-60 the plaintiff, plaintiff's agent, or attorney, should swear that "there is no property except the homestead on which to levy," and that plaintiff's "debt falls within some one of the classes (specifying which class) for which the homestead is bound under the constitution." Brantley v. Stephens, 77 Ga. 467 (1886); Davis v. Jones, 95 Ga. 788, 23 S.E. 79 (1895).

Where affidavit unnecessary.

- Where the mortgage, the rule nisi, and the rule absolute all showed that the debt was within the exceptional class which could subject a homestead, and was for purchase money, an affidavit to that effect was unnecessary. McDaniel v. Westberry, 74 Ga. 380 (1884).

Schedule as evidence.

- In an affidavit made under O.C.G.A. § 44-13-60 in order to procure a levy upon exempted realty, it was not harmful to the plaintiff in the execution levied to allow the defendant to introduce, for the purpose of showing that the property levied upon had been so set apart, a schedule of exempted personalty and realty which did not sufficiently describe the latter. Moore v. Penn, 115 Ga. 796, 42 S.E. 57 (1902).

Debts for purchase money.

- A homestead is subject to an execution founded upon a debt contracted for the purchase money, and the fact that the debt has been transferred to a third person does not change that liability. Chambliss v. Phelps, 39 Ga. 386 (1869).

Admission that judgment was for purchase money of the land levied on was fatal to the affidavit of illegality under O.C.G.A. § 44-13-60. Blackwell v. Aiken, 73 Ga. 55 (1884).

Sale pending application.

- Where land was sold at sheriff's sale pending application for homestead, the purchaser at such sale, with notice that such application was pending, took the property subject to the encumbrance of the homestead. Kilgore v. Beck, 40 Ga. 293 (1869).

Consent verdict.

- The omission to file an affidavit as provided by O.C.G.A. § 44-13-60 did not render void the consent verdict and judgment and sale under execution of part of land in controversy. Mobley v. Belcher, 144 Ga. 442, 87 S.E. 470 (1915).

Making affidavit after levy and claim.

- Where the only evidence of the making of an affidavit prior to the levy was that the sheriff's entry of levy stated that it was made "by reason of an affidavit of plaintiff's attorney that the homestead is subject," this was not sufficient; nor was this cured by the making of an affidavit after the levy and interposition of a claim, that, to the best of the knowledge and belief of plaintiff's attorney, the debt for which the execution issued "is one from which the homestead is not exempt." In such a case, claim was a proper remedy to contest the levy and sale of the homestead. Brantley v. Stephens, 77 Ga. 467 (1886); Smith & Hollis v. Youngblood, 23 Ga. App. 640, 99 S.E. 143 (1919).

Verdict declaring realty subject.

- Where a verdict declares in terms that certain realty was subject thereto, and the judgment directs the sale of this realty, the affidavit prescribed by O.C.G.A. § 44-13-60 is not essential before the levy is made. Davis v. Taylor, 103 Ga. 366, 30 S.E. 50 (1898).

Fi. fa. not showing superior lien.

- Where a homestead is being levied on, and the fi. fa. fails to show upon its face a lien superior to the homestead, and where the plaintiff in fi. fa. has not filed the affidavit required by O.C.G.A. § 44-13-60, the levy is proceeding illegally. Murphey v. Smith, 16 Ga. App. 472, 85 S.E. 791 (1915).

Giving bonds for title.

- Where the vendor of land takes promissory notes from the vendee for its purchase, giving to the latter a bond for titles, sues the notes to judgment and then makes and files a deed to the vendee for the purpose of effecting a sale of the land for the purchase money under an execution issued from the judgment, the sale cannot be defeated by the vendee having the land set apart as a homestead; nor is it necessary for the plaintiff to file an affidavit under the provisions of O.C.G.A. § 44-13-60 in order to have the execution proceed. Perdue v. Fraley, 92 Ga. 780, 19 S.E. 40 (1894).

Dismissal of counter-affidavit.

- Under O.C.G.A. § 44-13-60 an order dismissing a counter-affidavit renders a forthcoming bond obligator, where the property was not forthcoming, the sheriff could maintain in sheriff's own name an action upon the bond for a breach of the same. Clark v. Horn, 99 Ga. 165, 25 S.E. 203 (1896).

Liability of officer.

- Any officer knowingly levying upon property which has been made exempt from the process by either of the methods provided by law shall be guilty of a trespass, except that, in case of the constitutional homestead, a levy is permissible where the plaintiff, plaintiff's agent, or attorney, makes and places in the hands of the officer the affidavit prescribed by law. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250 (1932).

Burden of proof on sheriff.

- Where a sheriff, upon being sued for failure to levy an execution upon certain personalty pleads, as an excuse for not having made the levy, that such personalty had been set apart to the judgment debtor as homestead property, the burden is upon the sheriff to show that the homestead exemption in question was a valid one. Johns v. Robinson, 119 Ga. 59, 45 S.E. 727 (1903).

Bankruptcy court has no jurisdiction to protect or enforce against the bankrupt's exemption rights of creditors not having judgment or other lien, whose obligations to pay contain waiver of homestead authorized by state laws. Lockwood v. Exchange Bank, 190 U.S. 294, 23 S. Ct. 751, 47 L. Ed. 1061 (1903);(decided under prior bankruptcy law).

Cited in Gillespie v. Chastain, 57 Ga. 218 (1876).

Am. Jur. 2d.

- 31 Am. Jur. 2d, Exemptions, §§ 136, 142. 40 Am. Jur. 2d, Homesteads, §§ 83, 90.

C.J.S.

- 40 C.J.S., Homesteads, § 135.

ALR.

- Lien of tax collector's bond, 54 A.L.R. 1285.