Loyless & Griffin vs. Collins. chase money, etc. The several acts of the legislature on the subject require the utmost good faith on the part of him who takes the homestead and the exemption. He is required to make out a complete schedule of personalty owned by him, and provision is made with respect to the schedule so made After his exemption of $1,000 00, the balance is to be sold for the benefit of creditors: Code, section 2005. out. I analogize it very much to the old insolvent acts in regard to the discharge of the debtor from prison. No fraud of any sort will be tolerated. I think it would be a great fraud, a heinous wrong, for a party to cause to be exempted one hun-. dred bushels of corn, or one thousand pounds of bacon, for which he had not paid at the time of the exemption, and then to consume this bacon and corn, and leave the seller remediless. Or, in the case at bar, I think it would be an equal fraud for him to use the gin until it became worthless, or to sell it and pocket the money, and the seller of the gin have no remedy, though it should appear that it was worn out in ginning the very cotton in dispute, or sold for another gin, or for money and the money consumed by the family. Thus I think I show that cases may arise where it would work great wrong to lay down the principle approved by a majority of the court, that "inasmuch as the cotton gin had not been paid for, it was subject to the plaintiff's judgment for the purchase money due therefor, but not the other property contained in the homestead exemption." I hold that all the exempted property is liable for the purchase money of any part, just as all is liable for taxes, or money borrowed for improvements. The entire estate is exempted on the condition that all is paid for, and if any part be not paid for, the whole is not exempted according to law until such part be paid for. The constitution admits of this interpretation. It exempts "realty to the value of $2,000 00 in specie, and personal property to the value of $1,000 00 in specie." It exempts this whole property, or as much as the debtor has, to be set apart, free from all debts, "except for taxes, money borrowed and expended in the improvement of the homestead, or for the ! Loyless & Griffin vs. Collins. purchase money of the same, and for labor done thereon, or material furnished therefor, or removal of encumbrances thereon." What taxes? Taxes on all. What purchase money? Purchase money for all. What property is exempt? The whole of it. Is the laborer to have a right to go only upon the house he builds or the fence he erects or the field he clears or cultivates? I think not. I think that a fair interpretation of the provision of the constitution and of the laws framed thereon, make all the homestead and exemption liable for the purchase money of any part: Constitution; Code, sec. 5135. The act is but a transcript of the constitution: Code, section 2002. Immediately following this last section are many sections which show that the utmost good faith must be observed by the debtor, particularly section 2005. This good faith is broken if he conceals any of his personal effects; how much more if he attempts to exempt what he has never paid for, and to which he cannot conscientiously claim title. Nobody is hurt by the construction I put on the constitution, and justice is done. Neither the constitution, nor the act passed to carry it into effect, cuts up the homestead and exemption into separate parcels, making one parcel liable for one debt and another for another debt, but they both treat the whole as one trust estate, exempt from all the liabilities of the head of the family, except a particular class of debts, and for this class of debts I think the whole trust estate is liable. It may be, that in the case at bar, no particular harm would be done, even if the case were not decided with the creditor upon other grounds. It may be that the gin is still in possession of the debtor, and not worn out or put out of the way. The record is silent as to these points in this case; but the principle decided is of great practical importance, and I cannot give my assent to it. I need not say in what high esteem I hold the legal opinions of my associates on the bench; nor need I say how readily I yield to their judgments when I can conscientiously do so. But in this matter my own convictions, however erroneous they may be, are clear and strong, and I feel it a Lumsden vs. Leonard. duty to express my dissent from this part of the decision, that only the particular item of the homestead and exemption not paid for is liable for the purchase money thereof. In my judgment, all is liable until all is paid for. 55 374 59 363 59 700 60 54 THOMAS R. LUMSDEN, plaintiff in error, vs. RICHARD H. 1. The levy upon cotton, and the delivery of the said cotton after the levy to the 2. The removal of personal property from one county in the state to another 4. Mere non-action by the creditor will not release the surety, unless such Principal and security. Debtor and creditor. Before Judge JAMES JOHNSON. Talbot Superior Court. March Term, 1875. Reported in the opinion. M. H. BLANDFORD; WILLIS & WILLIS, for plaintiffs in error. H. L. BENNING; PEABODY & BRANNON, for defendant. JACKSON, Judge. Lumsden vs. Leonard. 1. Leonard obtained judgment against Sandford, principal, and Lumsden, security, in 1866; a fi. fa. was issued thereon and levied upon seven bales of cotton; this cotton was delivered to the principal, Sandford, as whose property it was levied upon. Leonard, so far as appears from this record, took no steps to recover the cotton or to get the money from the sheriff. We think the sheriff represented the judgment creditor, and his act in giving up the cotton was the act of Leonard, and discharged the surety to the extent of the value of the cotton. If plaintiff was not at fault about it, the sheriff is responsible to him; if he were to blame, much more should the security be discharged to the extent of the value of the cotton. The case at bar was a motion to discharge him, and he should have been released to this extent: 6 Georgia Reports, 396, 397. 2. There were two other grounds taken in the motion; one predicated on the removal of the personal property from Talbot to Crawford county. It does not appear that any consideration passed from the principal debtor to the judgment creditor to allow the former to move his property, nor was it shown in the motion that the surety was damaged by the removal. Mere non-action on the part of a judgment creditor in such a case will not discharge the surety: 47 Georgia Reports, 272; 2 American Leading Cases, 267; Code, section 2154. 3. The third ground of the motion was made upon the charge that plaintiff in fi. fa. had failed to levy upon real estate of the principal after it was sold until (the purchaser holding possession for four years,) the land was discharged from the lien of the judgment, and it was sufficient to have paid it. It is not alleged in this ground that the plaintiff in fi. fa. was notified to levy in writing, or that he was tendered the expenses of proceeding against the land; and in the absence of such averments we think no error was committed in striking this ground in the motion. The security had the right to pay off the judgment and go upon the personalty in the one case, and the land in the other; and if he wished the Epping vs. Mockler et al. judgment creditor to litigate for his benefit, he should at least notify him, and offer to pay all the expenses thereof. 4. On a careful examination of our own decisions since the organization of this court, and of the law in general, upon this subject, we conclude that the true doctrine to be gathered from all the sources at our command is this, (and it is embodied in our Code.) Some act must be done by the creditor, either before or after judgment, which injures the surety in some way; mere failure or negligence on the part of the creditors will not relieve the surety. And the exceptions to this general rule will be found to be where the creditor omits to do something by which some collateral security in his hands is made unproductive, or where he is notified under the statute to proceed, and he fails or refuses; and if the letter of the statute on the subject of notice be extended to embrace proceedings after judgment, we thing the security, in addition to the notice, should at least indemnify the creditor against the expenses of litigation: Code, section 2154; 3 Kelly, 53; 2 Simons, 457; 4 Johnson's Chancery Reports, 123; 8 Pick., 122; 37 Georgia Reports, 428. We therefore reverse the judgment of the court below, as to his ruling on the cotton; the dismissal of the levy and re-delivery of it to the principal defendant operates to discharge the surety pro tanto; and we affirm his judgment on the other two grounds: See 3 Kelly, 248, 249, 412; 11 Georgia Reports, 300; 17 Ibid., 111; 33 Ibid., 173; 44 Ibid., 11; 47 Ibid., 273; 3 Penn., 437; 5 Watts, 179; 2 American Leading Cases, 267, et seq. Judgment reversed. CARL EPPING, plaintiff in error, vs. PATRICK MOCKLER et al., defendants in error. 1. As a general rule, parol evidence is sufficient to show title to personal pro perty, but where the interest which the party in possession has in the personalty, whether one-half, or any aliquot part, or the whole, is of the very essence of the suit, and absolutely necessary to fix the amount of the recovery, and |