
    No. 37.
    David Rogers, plaintiff in error, vs. W. A. Hawkins, defendant.
    
       The Act of 1841, as amended by the Act of 1843, exempting 50 acres of land, with the improvements, of an insolvent debtor, from levy and sale, provided the same does not exceed $200 in value, and requiring the County Surveyor to lay off and admeasure the same, docs not apply to a case where the quantity of land owned by the defendant is less than ten acres.
    Illegality, in Lee. Tried before Judge Allen, April-Term, 1856.
    
      Afi.fa. in favor of Willis A. Hawkins against David Rogers, was levied on ten acres of land as the property of the-latter, to satisfy said fi. fa. The defendant thereupon made affidavit that “the above stated fi. fa. is proceeding illegally against him, on the following grounds, to-wit:
    1st. Because the fi. fa. has been levied on a certain portion of land in lot 205, of the thirteenth district of said county, belonging to this defendant, consisting of not more than., ■nine or ten acres, which'is all the land defendant has; and" deponent is the head of a family, having a wife and three children.
    2d. Because the debt upon which this fi. fa. is founded, was not contracted for the purchase money of said land.
    3d. Because, as this deponent believes, the dwelling-house on said land is not worth more than two hundred dollars. Eor all which reasons said fi. fa, is proceeding illegally,”'" &c.
    
      On the hearing of said illegality, Counsel for plaintiff' moved the Court to dismiss the same, because no certificate of the value of the house or houses upon said land appeared to have been made,as required by the Statute allowing fifty acres-of land to the head of every family exempt from levy and;" sale; and for the further reason, that the plaintiff had not - been notified of such valuation, if such • had been made: whereupon, defendant’s Counsel proposed to prove that the. buildings on said land had been valued by two valuing agents —one appointed by said defendant'í’n fi. fa'.'and'tire other'by-a Justice of the Peace of the district where the land lies; and that said valuation showed said improvements not worth over two hundred dollars; which proof the Co,urt refused to. hear, saying it would avail the defendant in fi. fa. nothing, 1 unless he could show that the plaintiff had been notified prior • to the valuation, and that the valuation had been made prior to the ^staying the fi. fa. in the Sheriff’s hands, and passed1 an order dismissing said illegality. To which ruling Counsel for defendant in fi. fa. excepted, on the folio-wing grounds,' ' to-wit: •
    1st. The Court erred in dismissing the illegality in the' premises, the law not requiring notice to plaintiff in fi.fa. by-" defendant in fi.fa. either before or after the filing the illegality. ■
    2d. The Court erred in holding that the valuation of the building on the premises should be made prior to the staying-' of the fi. fa. in the Sheriff’s hands by the illegality.
    3d. The Court erred in dismissing the illegality, for'the-reason assigned, it being contrary to the policy of the Statute in such cases made and provided, that any head of a" family claiming -its benefits, should be deprived thereof unless rights had already vested in third persons, not notified ■ of such claim; and in this case, the filing the illegality was ■ a sufficient notice to plaintiff in fi. fa.
    
    4th. The -Court erred in dismissing said illegality, because the levy upon said fi. fa. showed that the amount of said land1 did not exceed fifty acres, and the affidavit of illegality showed that said land was the only land belonging to said ■- defendant, and that the buildings thereon were not worth over two hundred dollars-, and that said land did not derive-, itp.,chief.value from any other cause than its adaptation to» .'§g.idcultprah;.purposes. '
    Brarman and Kimbrough, for plaintiff in error.
    f -Hawkins, for defendant.
   By the Court.

Lumpkin J.

delivering the opinion..

By a careful examination of the several Statutes; passed in this State for the purpose of exempting a certain quantity of real estate, belonging to insolvent debtors, from levy and sale, it is clear that this case is not embraced within-the provisions of any of them.

By the Act of 1841, (Cobb, 389,) twenty acres for the-head of the family and five acres for each of the children. Hnder-'fifteen--years 'of age, were exempt. And the same to - be laid off by the County Surveyor, and were to embrace the dwelling-house and improvements, provided these did not exceed in value $200, to be ascertained and certified by three - valuing agents: one to be appointed by the plaintiff in execution, one by the defendant, and one by a Justice of the Peace in the district where the said dwelling-house and improvements are.

By the Act of 1843, fifty acres are exempt, except for the purchase money. (Cobb, 390.) And by the Act of ' 1845, the benefits of the foregoing Acts are extended to the • citizens of any city, town or village in the State ; and to include real property in such places, not exceeding in value • $200. (Cobb, 391.)

But neither this last Act, according to its letter, nor any other, in spirit, extend to a place in the country like the • present, containing loss than fifty acres; and yet, deriving;, its chief value, probably, from its location.

The decision of the Court was based: upon the Act of 1841. (But taking that Act in connection with the Act „of 1843, which is amendatory of it, and is it not .apparent that they •both apply to cases only where the whole tract is more than fifty acres ? In such case only is it necessary for the County Surveyor to lay off and admeasure the fifty acres; and in such case only is it necessary for the defendant to furnish the Sheriff or other levying officer with a plat or boundary of the fifty acres so laid off. But in the case before us, the ■'•whole tract consists of less than ton acres. Of course the Acts of 1841 and 1843 do not apply.' • ■

Could the Sheriff levy at all upon a tract of less than fifty ■acres, belonging to an insolvent debtor ? Whether he could or could not, we think it clear that the offer made by the defendant to prove that the land and improvements were not ■■worth more than two hundred dollars, was all that the creditor could claim. Suppose the valuation exceeded that sum, would not the creditor get the excess,, just' as though the .property was located in a town. If it ivas not worth that amount could it be sold, and ought it to be sold, under any just construction of these Statutes ?  