Citizens Bank & Trust Co. v. Pendergrass Banking Co. , 164 Ga. 302 ( 1927 )

Hires, J.

1. A judgment against a partner is not a lien upon his individual interest in the firm property, and such interest is not liable to levy and sale under execution upon such judgment, even after dissolution, but must be reached by process of garnishment. Willis v. Henderson, 43 Ga. 325; Anderson v. Cheney, 51 Ga. 372; Ferris v. Van Ingen, 110 Ga. 102 (4) (35 S. E. 347); Civil Code (1910), § 3190.

2‘. The waiver of all homestead and exemption rights in the note upon which the judgment in favor of Pendergrass Banking Company was based did not give to the bank a right and title to the homestead exemption. Norris v. Aikens, 155 Ga. 488 (117 S. E. 248).

3. Choses in action are not liable to be seized and sold under execution, unless made so specially by statute. Civil Code (1910), § 5948. The right of a partner to a homestead exemption out of the property of his firm is a chose in action; and the assignment of such chose in action by the partner, before the institution of a collateral proceeding or a garnishment, passes to the assignee the property in the chose in action assigned, free from the lien of a general judgment previously rendered against the assignor. Fidelity &c. Co. v. Exchange Bank, 100 Ga. 619 (28 S. E. 393) ; Armour Packing Co. v. Wynn, 119 Ga. 683 (46 S. E. 865) ; Norris v. Aikens, supra; Morris Fertilizer Co. v. White, 158 Ga. 38 (122 S. E. 692).

4. The right to a homestead or exemption can be transferred and assigned before the assignor is adjudged a bankrupt, or before bankruptcy proceedings are instituted. Saul v. Bowers, 155 Ga. 450 (117 S. E. 86).

5. The assignment of a homestead exemption having been made prior to-the discharge of the bankrupt, in payment of a note in favor of the assignee, containing a waiver of all rights to homestead and exemption, there was a sufficient consideration for such assignment, and the same was not rendered nugatory by the subsequent discharge of the bankrupt. Such discharge would bar the assignee from any further enforcement of the note against the assignor, but would not debar the assignee from asserting his title to the homestead exemption under the assignment.

G. Applying the above principles, the court below erred in not granting a new trial. Judgment reversed.

All the Justices concur. Stephen C. Upson, for plaintiffs. John J. Strickland, Rupert A. Brown, Q. W. Westmoreland, and JI..W. Davis, for defendant.

Bankruptcy, 7 C. J. p. 397, n. 96.

Executions, 23 C. J. p. 326, n. 10.

Exemptions, 25 C. J. p. 106, n. 17; p. 109, n. 74.

Garnishment, 28 C. J. p. 99, n. 27, 32.

Homesteads, 29 C. J. p. 784, n. 31; p. 883, n. '98; p. 920, n. 44; p. 956, n. 54 New.

Judgments, 34 C. J. p. 598, n. 26.

Partnership; 30 Cyc. p. 599, n. 87.

No. 5674. May 7, 1927.