Very clearly, the rights of the bankrupt to an exemption, or rather the quantity of his property that he is permitted to hold exempt from the claims of the assignee, is to be determined by the bankrupt law and the bankrupt court. The jurisdiction of the United States over the subject of bankruptcy, is plenary. Const. U. *602S. art. 1, § S, par. 4. The only doubt there can be, on the facts of this record, is whether our law does not give the wife and family such a specific interest in and lien upon the property of the bankrupt—not for his but for their sake—as is saved by the bankrupt law itself. That law does not pretend to take, as the property of the bankrupt, anything which is not legally and equitably his; nor does it contemplate interfering with specific liens third persons may have, under the laws of the state, upon property included within the schedule.
Our constitution, on the subject of homesteads, and the act of 1808, indicates, very clearly, that something more is meant by the homestead provisions than a mere exemption of the debtor’s property from levy and sale. The constitution provides that the general assembly shall enact laws for the full and complete protection and security of the same, to the sole use and benefit of the families aforesaid. Const, art. 7, § 1. And the act of 1868, to carry this provision of the constitution into effect, provides for the application, by a next friend of the wife, apart from the husband. The act, too, clearly contemplates that, after the laying off of the homestead, it shall become the property of the wife. She is authorized to sue for trespasses upon it, and, at her death, provision is made for its disposition, as though it were not the property of the husband at all. Act 1868 (Pamph.) p. 27.
But it is very clear that until it is laid off, there is no property, or right of property in the family. ' The right of the wife and family to a homestead does not stand on the footing of an equitable title or lien, which follows the property into the hands of a purchaser with notice. It is a right which depends for its existence upon the judgment of the court. We have held in the ease of Blivins v. Johnson [40 Ga. 207] December term, 1870, that when the application had been made, when there was a lis pendens, a purchaser at sheriff’s sale, under notice, bought subject to the judgment. But we have not held that any purchaser, at any time, who bought the property with the notice that the wife had no homestead, bought subject to it. It follows, from the very nature of the thing, that the wife can have no title or lien, because not only her right to it, but the number of acres, and the location of it, are dependent upon the judgment of the court. Indeed, her right depends largely upon her application. Thousands of wives and families do not apply for it. Indeed the main and only object of the law is to interfere for the protection of the family against creditors who, if they were permitted full sway, would render the family homeless, and often throw them upon the public for support. It is clear to us, therefore, that this right of the wife is no title, lien, or incumbrance upon the husband’s property, until it has been appropriated by a judgment. If this be so, the jurisdiction over it passes, in case of the bankruptcy of the husband, to the federal court We have, in the case of Hardeman v. White (unreported), analogized this right of the wife to the case of a preferred or prior debt, and we have spoken of the proceedings as a mode provided by law for its recovery. Perhaps this is the correct view of it
In my judgment, the true course for these wives is to present the claims before the bankrupt court, not as an exemption of the husband’s property, but as a claim of their own against it, having, by the laws of Georgia, a preference over other claims against him. We have in this case allowed the decision made at this term, in the case of Lumpkin v. Eason [44 Ga. 339], to be expressly questioned, and the questions argued without reference to that decision. We abide by the decision in that case. For myself, whilst I may not put the case upon the same ground as my brethren, I abide by the written brief statement then made of the ground of my concurrence. Judgment affirmed.