
    *Griffin & Clay, plaintiffs in error, vs. John F. Treutlen, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Homestead — Prior Contract — Encumbrance.—It is not sufficient to make a mortgage lien good against a homestead and exemption, under the Act of 1868, that it was given in lieu of another mortgage on the property, unless it further appear that the first mortgage or lien was a lien superior to the right of homestead. There is nothing in the record which shows that the original lien or mortgage was good, in spite of the homestead, either by the laws of Alabama or Georgia.
    Homestead. Removal of incumbrance. Mortgage. Before Judge Harreee. Clay Superior Court. September Term, 1872.
    Griffin & Clay foreclosed a mortgage, executed by John F. Treutlen, on nine head of mules, to secure the payment of a promissory note for $1,407 55, on April 8th, 1871, and had the execution issuing therefrom levied upon the mortgaged property. The mules had been exempted, under the homestead law, prior to the levy. To procure the levy to be made, the plaintiffs filed their affidavit to the effect that the debt for which they were proceeding, was one against which the homestead exemption was not a legal protection. The defendant filed a counter-affidavit, and thus the issue was formed.
    •Upon the trial, the plaintiffs introduced a mortgage upon the same property, executed by the defendant to plaintiffs in Alabama, op March 8th, 1870, to secure the payment of $1,296 00, to be due on November 8th, 1870, advanced by plaintiffs to the defendant, for the purpose of enabling him to make a crop, said lien having been given in accordance with an Act of the General Assembly of the State of Alabama, approved January 16th, 1866, and amended February 25th, 1867.
    The defendant, on being introduced by the plaintiffs, testified that the debt for which the mortgage execution was proceeding, had been contracted by him with the plaintiffs to cancel and satisfy the mortgage executed in Alabama, and on no other consideration. That the mules had been exempted *under the Homestead Act, subsequent to the date of the mortgage from which the execution issued.
    The Court charged the jury, “that if the debt now sought to be collected, was made to satisfy and cancel the aforesaid written contract, -(the Alabama mortgage) yet the jury must find the issue for the defendant.”
    The jury returned a verdict for the defendant, whereupon plaintiffs excepted to said charge, and now assign the same as error.
    John T. Clarke, for plaintiffs in error.
    R. A. TurnipseEd; J. C. Wells, for defendant.
    
      
      Homestead — Prior Contract — Encumbrance__See the note to Kelly v. Stephens, 39 Ga. 466, where the principal case is quoted. See also, Ency. Dig. Ga. Rep., vol. 6, p. 39.
    
   McCay, Judge. •

It is true that the Constitution and the Act of 1868, in terms, provides that a homestead shall not be good against a debt contracted for the removal of an incumbrance. But this, as a matter of course*, means an incumbrance not in name but in fact; an incumbrance, which, unless removed, would sell the homestead. The source cannot rise higher than the fountain. It would seem absurd to say that if a debt exist, which is not a good incumbrance on a homestead, that a debt contracted to pay that shall be a good incumbrance. Nor is the case of Kelly vs. Stephens, in 39 Georgia, 466, contrary to this view. The execution, to remove which was the object of the mortgage given in that case, was, at the time, not only a good incumbrance, but it was actually about to sell, and would have sold the land, except for the money, to secure the payment of which the mortgage was given. There is nothing in the record going to show that the mortgage or lien of which the present mortgage is the successor, was a good incumbrance as against the homestead, and unless that appeared, we see no reason why the present mortgage is.

Judgment affirmed.  