(after stating the' above facts.)
1. If this property was' sold subject to the exemption right, if it was so understood, and brought only a fraction of its value, this lady has a remedy in equity, if not at law, against the purchaser. She has a right, based upon ■ sound equitable faets and principles, to have the enjoyment of this property, to effectuate the right in contemplation of which the sale was made, and the purchase at that sale consummated. Now that there is so little distinction between legal and equitable remedies, that right can be administered in a eourt-of law; and if this declaration (the evidence came in under the declaration without objection apparently) is not broad enough or- specific enough, it can be amended, and could have been amended in the court below; and we think the judge ought not to have granted the nonsuit, and that there was a substantial case before the jury, if they thought the exemption right was saved, and not merely the pending application. On the other hand, if *356they thought that it was the understanding that the exemption right was to go with the failure of that one application, and that was to be an end of it, there ought to have been no recovery. But this was a question of fact the court could not determine, and it ought to have been referred to the jury.
2. With regard to the possession of the property at the time the action was brought, which the code (§8028) makes sufficient to recover upon, in lieu of actual conversion, there was sufficient evidence to goto the jury, as it showed that the defendant bid off the property and took it into his possession a few years before; that state of things being shown, there would be some degree of presumption that the possession had not changed, and that he still had possession. 43 Ga. 323. At all events, the jury might or might not have inferred the continuance of possession up to the time the action was' brought. On both elements of the case there was enough for the jury to act upon, and any shortcoming in the declaration could have been amended. It is better to conduct this litigation through than to defeat the case and have the plaintiff resort to a bill in equity or its equivalent in a court of law.
So the judgment of nonsuit is reversed.
The head-notes are a part of this opinion.
Judgment reversed.