Scroggins vs. The State of Georgia. the civil proceeding of attachment, a similar affidavit, or one which was perhaps less defective, was considered void by so great a judge as Chief Justice LUMPKIN: 8 Georgia Reports, 521. And see 4 Ind., 524; 14 Ibid., 109, 280; 1 Denio, 429; 4 Ark., 444. The case in 8 Georgia Reports is criticised in 47 Georgia Reports, 92. 2. It is to be remembered that the justice's court is one of limited and special jurisdiction, and as such, all the facts to entitle it to try, pass sentence and inflict punishment, ought to appear on the face of the proceedings: 7 Georgia Reports, 362; 13 Ibid., 76, and cases cited. 3. The power to try misdemeanors is conferred by statute, with the specified waiver by the accused; but the trial must be upon accusation founded upon affidavit. affidavit. Affidavit is essential, and if the instrument treated by the court and the parties as an affidavit, be void, there is no foundation for the proceeding; the whole trial is a nullity, and the conviction ought to be set aside by the superior court on certiorari. A valid affidavit being wanting, the bottom is knocked out of the case. It is a tub with only staves and hoops, and will hold nothing. 4. The waiver signed by defendant's counsel is equivalent to that prescribed by the statute. Were this the only difficulty in the case it would be hopeless for the plaintiff in error. 5. It was an inadvertance in the judge to receive a communication from the magistrate, and give heed to it. To pursue this practice habitually, would tend to demoralize the judiciary. A judge should no more listen to suggestions of fact outside of the record, than a jury outside of the evidence. A communication not authorized by law, and which varies the case made, might as well enter the jury room as the judge's chamber. The one ought to be repelled quite as promptly as the other. The magistrate, whose judgment is complained of, can be heard only through his return, after the certiorari has been granted. As the case will, perhaps, be again tried, we forbear to express any opinion on the sufficiency of the evidence. The punishment seems to us, under the evidence Roberts et ux. vs. Trammell. set out in the petition, in a high degree rigorous; indeed, ab- HEZEKIAH C. ROBERTS et ux., praintiffs in error, vs. WIL LIAM T. TRAMMELL, defendant in error. 1. Where a deed was made and bond for titles taken by the vendor from the vendee, with the intention that the entire transaction should operate as an equitable mortgage to secure a loan of money made by the obligor to the obligee in the bond, the latter cannot resist a recovery in an action of ejectment in favor of the former by setting up the facts aforesaid in an equitable plea, without offering to pay the amount borrowed with the interest thereon. 2. The 11th section of the act of 1868, embodied in the 2025th section of the Code, authorizing a sale of the homestead as therein provided, is in conflict with the first section of the seventh article of the constitution, and therefore void. BLECKLEY, Judge, concurring. 1. In so far as it may be the purpose of the eleventh section of the act of 1868, to allow a sale or encumbrance of the homestead for objects other than those specified in the constitution, the section is unconstitutional and void, inasmuch as no provision is made for investing the proceeds in like property, and securing the same to the sole use and benefit of the family. A sale which converts realty into personalty, and leaves it personalty, is manifestly repugnant to the constitution. 2. A conveyance of the homstead by husband and wife, with the approval of the ordinary, to raise money for the husband to commence or resume business, the object being known to the purchaser, passes no title on which recovery can be had in ejectment, so long as the family exists. If the purchaser acquires any title whatever, by means of such conveyance, it is one to take effect in possession only after a dissolution of the family, and the consequent cessation of the homestead right. 47 Georgia Reports, 620. JACKSON, Judge, concurring. 1. The wife not having joined in a written application to sell or encumber the homestead, and not having been examined at all by the ordinary to see that her consent was freely and voluntarily given to the deed, the statute, Code, section 2025, has not been fully complied with and the deed passed no title to the grantee: 45 Georgia Reports, 621. 55 383 56 80 63 667 64 724 65 103 Roberts et ux. vs. Trammell. 2. Even if the statute had been fully complied with, it is unconstitutional so far as it may be construed to authorize the alienation of the homestead, or its encumbrance, to enable the husband to go into any business engagement or speculation; and the deed in the case at bar, showing on its face that it was executed for such purpose, is against the true intent and spirit of the constitution and absolutely void. Equitable mortgage. Ejectment. Homestead. Constitutional law. Before Judge HALL. Spalding Superior Court. August Term, 1874. Reported in the opinions. A. T. AKERMAN; BOYNTON & DISMUKE; D. N. MARTIN, for plaintiffs in error. E. W. BECK; SPEER & STEWART, for defendant. WARNER, Chief Justice. This was an action of ejectment brought by the plaintiff against the defendants to recover the possession of a certain described house and lot in the city of Griffin, and the value of the rent thereof. The defendants filed an equitable plea to the plaintiff's action, alleging that the deed under which the plaintiffs claimed the title, was executed as a security for the loan of money, and was nothing more than an equitable mortgage, but the defendant did not offer to redeem the premises conveyed, by paying the money alleged to have been borrowed with the lawful interest due thereon. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiff for the premises in dispute, and the sum of $200 00 for rent. The defendants made a motion for a new trial on the several grounds set forth, which was overruled by the court, and defendants excepted. 1. It appears from the evidence in the record that in November, 1868, Mrs. Roberts, one of the defendants, applied for and obtained in behalf of herself and family a homestead exemption (her husband refusing to apply for the same,) of the house and lot in controversy; that afterwards, on the 10th Roberts et ux. vs. Trammell. of July, 1871, Roberts and wife executed a deed to the plaintiff, conveying to him the homestead premises for the consideration of $2,500 00, in which deed it is recited "that said sum of money is to be invested in a business arrangement, which the judgment of Mrs. Roberts approves, to enable her husband to enter again upon active employment for the support of his family, and to have some capital with which to engage in business which promises a good support for himself and family." This deed was approved by the ordinary on the same day it bears date, though it appears from the evidence that Mrs. Roberts was not present at the time of its approval. It also appears from the evidence that the business arrangement in which the money arising from the sale of the homestead was to be invested by Roberts, was in a partnership to make shingles. It further appears from the record that on the 3d of July, 1871, the plaintiff executed a bond to Roberts and wife conditioned to convey the premises in dispute to them by the 17th of May, 1872, if they should pay to him the sum of $2,535 00 on the day last mentioned. There was considerable evidence offered by both parties as to the sale of the property being an absolute sale, or whether the deed executed by Roberts and wife to the plaintiff was intended as a security for money borrowed, and therefore was merely an equitable mortgage. The evidence upon this point in the case was conflicting. Assuming, however, that it was an equitable mortgage, the defendants did not offer to redeem the property conveyed by the payment, or offering to pay, the money alleged to have been borrowed with the lawful interest due thereon, and so far as this branch of the case is concerned, it comes within the ruling of this court in Lackey vs. Bostwick, 54th Georgia Reports, 45. 2. The controlling question in the case, and which for the first time this court is called on to decide, is whether the 11th section of the act of 1868, embodied in the 2025th.section of the Code, authorizing a sale of the homestead as therein provided, is not in conflict with the 1st section of the 7th article of the constitution of 1868, and therefore void; in other Roberts et ux. vs. Trammell. words, whether the plaintiff's title to the homestead, conveyed by the defendants to him in pursuance of that act, as set forth in the record, is not void, as being in violation of the true intent, meaning and spirit of the constitution of 1868, providing a homestead for each head of a family. The constitution declares that "each head of a family, or guardian, or trustee of a family of minor children, shall be entitled to a homestead of realty to the value of $2,000 00 in specie, and personal property to the value of $1,000 00 in specie, both to be valued at the time they are set apart. And no court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, decree or execution, against said property so set apart, including such improvements as may be made thereon from time to time, except for taxes, money borrowed and expended in the improvement of the homestead, or for the purchase money of the same, and for labor done thereon, or for materials furnished therefor, or removal of incumbrances thereon. And it shall be the duty of the general assembly, as early as practicable, to provide by law for the setting apart and valuation of said property, and to enact laws for the full and complete protection and security of the same, to the sole use and benefit of the families as aforesaid." By the This is the organic, fundamental law of the state. 11th section of the act of 1868, it is declared that "said property so set apart (the homestead property) cannot be encumbered or alienated by the husband, but if the same be sold or encumbered by him and his wife, jointly, (in the case of husband and wife) or if they, with the approval of the ordinary, for the time being, indorsed on the encumbrance or deed, said encumbrance or deed shall be as valid as if said property had never been so set apart." It was the clear and obvious intention of that provision of the constitution before recited, to provide a permanent home for the family, and for the benefit of the family; that was the great paramount object to be accomplished, so as to attach the families of our people permanently to the soil of the state, and to provide the means |