McElmurray v. Blue & Stewart

A homestead in land will not protect the land against paying its own purchase money. Code of 1878, §5135; Code of 1882, §5211. There was a conflict of evidence as to whether the judgment in question was founded on a note given for the purchase money of goods (a store account), or in renewal of a note given by McElmurray to Chapman for land. The jury settled this conflict against the debtor and in favor of the creditors. The *513note given to Chapman was payable to him or bearer, and by him transferred by mere delivery to Blue & Stewart. According to their evidence, it was renewed from, time to time and the last renewal note was the basis of the judgment. On this state of facts the land would be subject to pay the judgment as against a homestead claimed and set up by McElmurray, Chapman’s vendee. Wofford v. Gaines, 53 Ga. 485. That part of the charge of the court which is assigned as error was apparently not adjusted accurately to the. facts in evidence, but the deviation was too slight to be material, as the real contest between the parties was as to whether the note reduced to judgment represented the purchase money of land or the purchase money of goods.

2. From the brief of evidence we think it clearly appears that some of the material facts alleged to be newly discovered were known to the movant at the time of trial. His affidavit that all of them were discovered afterwards is' thus discredited, and may be disregarded. There is no evidence of his diligence in preparing for trial except as stated in this affidavit, and even it discloses no specific acts of diligence. Our conclusion is that there was no error in overruling the motion for a new trial. Judgment affirmed.