Blackshear Manufacturing Co. v. Carter
Blackshear Manufacturing Co. v. Carter
Opinion of the Court
Blackshear Manufacturing Company filed a petition against J. R. Carter, alleging substantially: In 1905 a constitutional homestead was set apart to the defendant in two described tracts of land aggregating 176 acres, for the benefit of his wife and minor children. His wife died, but before the youngest child became of age he remarried, and .now said land stands for the benefit of his second wife and minor children. During 1928 and 1930 petitioner sold to defendant fertilizer to be used on said land, and which was used thereon in raising crops for the maintenance of defendant’s family, and said fertilizer constituted material furnished for said homestead property. On May 1, 1930, defendant executed to plaintiff a note for $976.38, the amount due for said fertilizer, of which $875.23 is due and unpaid. The names of the beneficiaries of the homestead were set out in the petition. The plaintiff prayed for judgment against Carter for the amount due on the note, and that “the homestead property described . . be adjudged subject to the lien of this judgment.” A copy of the note sued on was attached to the petition, and included a bill of sale of the crops to be grown by the maker within twelve months, one mule, and three head of cattle. The defendant demurred to the petition on the ground that it set forth no cause of action; that homestead property, such as alleged in the petition, can not be subjected to the payment of the debt alleged,to be due; that the debt declared upon affirmatively shows an individual obligation of J. R. Carter, and the plaintiff can not be heard to change, alter, or amend his solemn written contract. The court overruled the demurrer, and exceptions pendente lite were taken by the defendant.
We agree with the statement of learned counsel for the plaintiff in error in their brief that the issues of law in this case are: “ (1) Did the trial court err in overruling defendant’s general demurrer ? (2) Did the trial court err in granting defendant’s motion for nonsuit?” We also agree with counsel that it is not “worth while to attempt to argue the two questions separately.” It is admitted by counsel that “plaintiff’s case stands or falls upon the construction that the court shall place upon the phrase, 'material furnished therefor.’” Had the court dismissed the petition on the demurrer, that would have ended the case; and we must rule first upon the point raised by the cross-bill of exceptions. This, not only for the reason that the controlling question as to the meaning o'f the phrase “material furnished therefor” was expressly raised by demurrer, but also because of the fact that but for this question of constitutional construction this court would be without jurisdiction. Art. 9, sec. 1, par. 1, of the constitution of 1877 declares: “No court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against the property set apart for such purpose [homestead], including such improvements as may be made thereon from time to time, except for taxes, for the purchase-money of the same, for labor done thereon, for material furnished therefor, or for the removal of incumbrances thereon.” So far as the phrase “for material furnished therefor” is concerned, the meaning of the provision is doubtful by force of its own terms. It is necessary for this court to construe this phrase in order to determine whether or not fertilizer, as ordinarily purchased for the cultivation of a crop on a homestead, is such an “improvement” to homestead property as the framers of the constitution had in mind when they rendered the homestead liable “for material furnished therefor.” The word “therefor” is rationally connected with the word “improvement.” The reference to “material furnished” is vague and indefinite, and unlike other things which immediately precede it in the constitutional provision —the purchase-money of the same (the property set apart), and “labor done thereon,” which has been properly construed in Dicken v. Thrasher, 58 Ga. 360, to include any and all labor done “thereon,” that is, on the homestead property.
It is true this court has never expressly decided whether a homestead set apart by the terms of the constitution of 1877 is subject to a debt for fertilizer used thereon. And this because the question has not been presented. However, in Wilcox v. Cowart, 110 Ga. 320 (35 S. E. 283), it was held that property set apart as a homestead under the Code of 1895, § 2866 (Code of 1910, § 3416), is not subject to a debt for fertilizers used thereon. It must be presumed that the framers of the constitution, in using the words “material furnished,” were familiar with the pony or statutory homestead. At least, it can not be assumed that they intended to refer to fertilizer as an exception which would subject the homestead to levy. Crummey v. Bentley, 114 Ga. 746 (40 S. E. 765),
In view of the ruling upon the cross-bill, the main bill of exceptions will be dismissed.
Reference
- Full Case Name
- BLACKSHEAR MANUFACTURING COMPANY v. CARTER et vice versa
- Status
- Published