GA Code § 44-13-63 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 13 - Exemptions From Levy and Sale|Article 1 - Constitutional Exemptions|Part 3 - Levy on and Sale of Exempted Real Property|§ 44-13-63. Levy or Sale of Exempted Real Property as Trespass; Persons Entitled to Recovery

 Except as provided in Code Section 44-13-60, any officer knowingly levying on or selling property made exempt from sale shall be guilty of trespass; and any person allowed such exemption may recover for such trespass for their exclusive use.   (Ga. L. 1868, p. 27, § 10; Code 1873, § 2027; Code 1882, § 2027; Civil Code 1895, § 2849; Civil Code 1910, § 3399; Code 1933, § 51-901; Ga. L. 1983, p. 1170, § 2.)   Law reviews.   - For note discussing legal and equitable relief from execution available to debtors, see 12 Ga. L. Rev. 814 (1978).   JUDICIAL DECISIONS   Suit by wife or family.    - Under O.C.G.A. § 44-13-63 trespass against an officer for wrongful levy on homestead property may be maintained by the wife or family of the debtor without making the debtor himself a party plaintiff. McWilliams v. Anderson, 68 Ga. 772 (1882).   Husband's right to sue.    - The right to use is not limited to the wife or family, but the husband as the head of the family can maintain the action, and will hold the recovery for their use. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250 (1932).   Joinder of defendants.    - Where an officer makes an unauthorized and wrongful levy upon the property of another, the officer and any others who procure such a seizure are liable as joint trespassers, in which event the aggrieved party may bring suit against any one or all of such wrongdoers, according to the aggrieved party's election. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250 (1932); Alexander v. Holmes, 85 Ga. App. 124, 68 S.E.2d 242 (1951).   Affidavit of nonexemption.    - Any officer knowingly levying upon property which has been made exempt from the process by either the methods provided by law shall be guilty of a trespass, except that, in case of the constitutional homestead, a levy is permissible where the plaintiff, plaintiff's agent or attorney, makes and places in the hands of the officer the affidavit prescribed by law. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250 (1932).   Action against true owner.    - The fact that one who does not own land has had it set apart as a homestead would give that person no right as against the real owner, nor would that person therefore be entitled to recover against another for entering and taking possession of the land. Scott v. Mathis, 72 Ga. 119 (1883).   Evidence of valid exemption.    - A petition under O.C.G.A. § 44-13-63 may constitute an adequate basis for the admission of evidence of the fact of a valid exemption if the allegations imply a valid homestead even though it may not appear which kind of homestead has been obtained. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250 (1932).   Claim may be interposed.    - Trespass is not the only remedy. Bartlett v. Russell, 41 Ga. 196 (1870).   Trover may be brought.    - See Greaves v. Middlebrooks, 59 Ga. 240 (1877).    Cited in Gillespie v. Chastain, 57 Ga. 218 (1876); Crowley & Co. v. Freeman, 9 Ga. App. 1, 70 S.E. 349 (1911); White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932).   RESEARCH REFERENCES   Am. Jur. 2d.   - 31 Am. Jur. 2d, Exemptions, §§ 136, 142, 167.   C.J.S.   - 40 C.J.S., Homesteads, §§ 134, 153.   ALR.    - Availability of judgment under which exempt property has been seized as a set-off or counterclaim against claim based on wrongful seizure, 20 A.L.R. 276.