Worley v. Arnold

I do not think that the entire schedule in the statutory homestead is void because some of the property included is not described with particularity I doubt whether a failure to sufficiently describe property is a good objection to a schedule where a bona fide purchaser without notice, or one standing *Page 776 in a like position, is not involved. I even doubt whether a bona fide purchaser could object in view of the intimations on the subject by the Supreme Court. In Redding v. Lennon, 112 Ga. 491 (supra), Judge Simmons, speaking not for the court but for himself alone, stated: "If the applicant fails to describe the property with sufficient certainty to identify it, I see no reason why he can not be allowed to amend his schedule by giving a description which is sufficiently accurate and definite to identify the property. Under the decisions of this court, these exemption laws must be construed liberally in favor of the applicant. It would be a great hardship upon the family of a claimant if they were to be turned out of house and home because the original schedule, through ignorance or mistake of the person making it, failed to describe the land definitely and exactly. The original description was, in the present case, sufficient to put creditors upon notice that a tract of land, containing about one half of an acre, in the city of Way-cross, the property of the head of the family, was claimed to be exempt. . . I think further that, if no amendment had been allowed by the ordinary, and the claimant had introduced a copy of the original schedule and showed that the land levied on was the land intended to be listed in the schedule, this would have been sufficient." This statement was referred to in Seeland v. Denton Realty Corp.,148 Ga. 628 (97 S.E. 681). In Kendall v. Parker, 146 Ga. 260 (supra), it was held: "A schedule which purports to be an exemption, wherein no effort is made to specify any particular property as exempt, but setting forth an exact copy of the entire statute contained in the Civil Code, § 3416, embracing all the various classes of property which may be included in a schedule as exempt from levy and sale, is void." While the schedule in the instant case set forth the first three items in the language of the statute, the fourth item did not. It is as follows: "Fourth. Two head of hogs and fifty dollars' worth of provisions, to wit, About 50 bushels of corn, 25 bushels of wheat, 700 to 800 bundles of fodder, one ton of oat hay, wagon and other farm implements." No other items beyond the fourth was included. I think that the corn, wheat, fodder, and hay at least were sufficiently described, and I do not think that the case comes within the rule that the whole schedule is void because there was no effort to exempt any particular property. The whole schedule was not void. Furthermore, *Page 777 the other cases cited involved bona fide purchasers without notice, and there is no such question involved in this case. While the decision in this case is in favor of the homesteader, it is in my opinion contrary to the spirit of the homestead and exemption laws and against public policy. The law seeks to protect the poor, even from themselves, and every reasonable effort should be made to protect the homestead property of the poor and their families. The statutory homestead was valid as to the items sufficiently described and amendable as to those not sufficiently described, and therefore it could not be abandoned in favor of a constitutional homestead. All that the case ofStinson v. Hirsch, supra, holds with reference to amending a "short" or "pony" homestead is that one that is absolutely void may not be amended. We do not have such a case here.