O.C.G.A. § 44-13-63 (2019)

Annotations

Law reviews. For note discussing legal and equitable

T.44, C.13, A.1, P.4

relief from execution available to debtors, see 12 Ga. L. Rev. 814 (1978). JUDICIAL DECISIONS Suit by wife or family. - Under O.C.G.A. § 44-13-63 trespass against an officer for wrongful levy on homestead property may be maintained by the wife or family of the debtor without making the debtor himself a party plaintiff. McWilliams v. Anderson, 68 Ga. 772, 1882 Ga. LEXIS 103 (1882). Husband’s right to sue. - The right to use is not limited to the wife or family, but the husband as the head of the family can maintain the action, and will hold the recovery for their use. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250, 1932 Ga. App. LEXIS 157 (1932). Joinder of defendants. - Where an officer makes an unauthorized and wrongful levy upon the property of another, the officer and any others who procure such a seizure are liable as joint trespassers, in which event the aggrieved party may bring suit against any one or all of such wrongdoers, according to the aggrieved party’s election. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250, 1932 Ga. App. LEXIS 157 (1932); Alexander v. Holmes, 85 Ga. App. 124, 68 S.E.2d 242, 1951 Ga. App. LEXIS 1014 (1951). Affidavit of nonexemption. - Any officer knowingly levying upon property which has been made exempt from the process by either 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 Ga. App. LEXIS 157 (1932). Action against true owner. - The fact that one who does not own land has had it set apart as a homestead would give that person no right as against the real owner, nor would that person therefore be entitled to recover against another for entering and taking possession of the land. Scott v. Mathis, 72 Ga. 119, 1883 Ga. LEXIS 29 (1883). Evidence of valid exemption. - A petition under O.C.G.A. § 44-13-63 may constitute an adequate basis for the admission of evidence of the fact of a valid exemption if the allegations imply a valid homestead even though it may not appear which kind of homestead has been obtained. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250, 1932 Ga. App. LEXIS 157 (1932). Claim may be interposed. - Trespass is not the only remedy. Bartlett v. Russell, 41 Ga. 196, 1870 Ga. LEXIS 59 (1870). Trover may be brought. - See Greaves v. Middlebrooks, 59 Ga. 240, 1877 Ga. LEXIS 242 (1877).

RESEARCH REFERENCES Am. Jur. 2d. 31 Am. Jur. 2d, Exemptions, §§ 136, 142, 167. C.J.S. 40 C.J.S., Homesteads, §§ 134, 153.

ALR. Availability of judgment under which exempt property has been seized as a set-off or counterclaim against claim based on wrongful seizure, 20 A.L.R. 276.

PART 4 SALE OF EXCESS PROPERTY BY RECEIVER Editor’s notes. Ga. L. 1983, p. 1170, which amended

Code Sections 44-13-80 and 44-13-87 and reenacted Code Sections 44-13-81 through

T.44, C.13, A.1, P.4

44-13-86 without change, provided in § 1, not codified by the General Assembly, that: “It is the intent of this Act to imple-

ment certain changes required by Article I, Section I, Paragraph XXVI of the Constitution of the State of Georgia.”

RESEARCH REFERENCES ALR. Lien of judgment on excess value of homestead, 41 A.L.R.4th 292.