GA Code § 44-13-16 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 13 - Exemptions From Levy and Sale|Article 1 - Constitutional Exemptions|Part 1 - In General|§ 44-13-16. Sale of Exempted Property for Reinvestment; Procedure; Effect

  Whenever the debtor shall desire the exempted property, whether real or personal, to be sold for reinvestment, an application for the sale of the property must be made to the judge of the superior court of the county where the debtor resides or the property is situated unless the judge is disqualified, in which case application may be made to the judge of the superior court of an adjoining circuit. Upon proper showing, the judge may order a sale of the property; and the proceeds shall be reinvested upon the same uses.   A sale ordered pursuant to subsection (a) of this Code section shall operate to pass to the purchaser the entire interest and title of the beneficiaries in the exempted property and also the entire interest and title owned, before the exemption was made, by the party out of whose estate the property was so exempted.   The purchaser shall receive the property sold and shall hold the same, as to all liens thereon against the original debtor and with the same exemption therefrom, for the same length of time as was allowed to the original debtor before the sale; and, by consent of all lien creditors, the liens of such creditors may be divested and transferred to the newly acquired property by the order of the court pursuant to subsection (a) of this Code section.   An applicant who has obtained an exemption for the spouse, minor children, or dependents of the debtor may apply for an order of sale under subsections (a) through (c) of this Code section. All persons interested shall be parties to the proceeding.   The judge of the superior court shall order the entire proceedings recorded in the minutes by the clerk of the superior court of the county in which the parties applying for the order of sale reside and, when land is to be sold, in the county where the land is located; and the judge shall provide the means and mode of sale and reinvestment as provided in this Code section.   This Code section shall apply to the sale of any real or personal property set apart under this article.     (Ga. L. 1876, p. 48, § 7; Ga. L. 1878-79, p. 99, § 5; Code 1882, § 2025; Civil Code 1895, § 2847; Civil Code 1910, § 3397; Code 1933, § 51-801; Code 1981, §44-13-17; Code 1981, §44-13-16, as redesignated by Ga. L. 1983, p. 1170, § 2.)   Editor's notes.   - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-17 as this Code section. The 1983 Act also redesignated former Code Section 44-13-16, relating to how cash exempted, as present Code Section 44-13-15.   JUDICIAL DECISIONS   Applicability.    - O.C.G.A. § 44-13-16 applies to all homesteads, and in holding off creditors until the homestead term expires, it carries out the true intent of the constitution. Van Horn v. McNeill, 79 Ga. 121, 4 S.E. 111 (1887).   Strict construction.    - The policy of our law is not to alienate homesteads, and the statutes relating thereto including O.C.G.A. § 44-13-16 will be strictly construed, and the rights of the purchaser will be closely watched and never enlarged. Whittle v. Samuels, 54 Ga. 548 (1875).   Order of court required.    - The head of the family cannot legally sell or dispose of the exempted property without first obtaining an order of court as prescribed by O.C.G.A. § 44-13-16. Powers v. Rosenblatt & Co., 113 Ga. 559, 38 S.E. 969 (1901).   Sale not in accord with order.    - Where the sale was not in accord with the terms of the order, the purchaser did not acquire a valid title to the homestead property, and it was the right of the beneficiaries of the homestead to recover the same, together with mesne profits; but subject in equity to the right of the purchaser to offset against the same so much of the purchase money paid to the head of the family; and also to set off against such mesne profits any additional value to the homestead property brought about by reason of permanent improvements by the purchaser. Taylor v. James, 109 Ga. 327, 34 S.E. 674 (1899).   Purchaser charged with notice.    - An order having been granted by the judge of the superior court authorizing a sale of the homestead for reinvestment and distinctly providing that it would be sold at a designated price, one who undertook to purchase such homestead or a part thereof was chargeable with notice of the terms embraced in the judge's order. Taylor v. James, 109 Ga. 327, 34 S.E. 674 (1899).   Liens not transferred to property purchased.    - Where a homestead was sold for reinvestment under O.C.G.A. § 44-13-16, under an order of the chancellor for that purpose, but the liens of creditors were not transferred to the property purchased, the purchaser of the homestead took it, as to lien creditors thereon against the original debtor, with the same exemption therefrom, and for the same length of time, as was allowed to the original debtor before such sale. Therefore, after the sale, a judgment creditor could not levy on and bring to sale the property, subject to the homestead charge or encumbrance, the object being to sell the reversionary interest in the hands of the purchaser before the termination of the homestead estate. Stephenson v. Eberhart & Son, 79 Ga. 116, 3 S.E. 641 (1887).   Collateral understanding between parties.    - Where the head of a family and his wife, being the sole remaining beneficiaries of a homestead apply for authority to sell the homestead property at private sale, for the purpose of reinvestment in other specified real estate, they will be estopped thereafter from moving to set aside the deeds executed between the parties on the ground that there was a collateral understanding between them, not disclosed to the judge, that the exchange of the property would be made merely for convenience to enable the grantee of the homestead property to sell it at a higher price, and, if he failed to make a sale, that the deeds should be canceled. Vaughn v. Vaughn, 152 Ga. 160, 108 S.E. 541 (1921).    Upon removal of debtor from state, the debtor's homestead terminated, and a levy on and sale of the reversion would carry the entire title. City Bank v. Smisson, 73 Ga. 422 (1884).   Alienation by husband to wife.    - A homestead set apart for the benefit of a wife and minor children was not subject to alienation by the husband to the wife any more than to anyone else without an order of the judge of the superior court for reinvestment, as prescribed in O.C.G.A. § 44-13-16, even though at the time of the attempted alienation the wife was the sole beneficiary of the homestead, the minor children having then attained their majority. Love v. Anderson, 89 Ga. 612, 16 S.E. 68 (1892).   Application by widow.    - A widow, who is the head of a family, can make application under O.C.G.A. § 44-13-16 without joining her children therein. Deyton v. Bell, 81 Ga. 370, 8 S.E. 620 (1889).   Application by trustee or guardian.    - If the application is by a trustee or guardian for minors, to whom as such the homestead has been set apart, it is necessary to make the children parties. Deyton v. Bell, 81 Ga. 370, 8 S.E. 620 (1889).   Joining wife in application.    - It seems that where the head of a family applies under O.C.G.A. § 44-13-16, it is necessary for his wife, if he has one, to join with him in the application. If he has no wife, he can make the application alone. Deyton v. Bell, 81 Ga. 370, 8 S.E. 620 (1889).   Adult heirs acquiescing in setting apart homestead.    - A widow as the head of a family consisting of herself and a minor child, having had a homestead set apart to her out of the lands of her deceased husband's estate, and the adult heirs having acquiesced in the same, and the lands so set apart having been subsequently sold by order of the judge in conformity to O.C.G.A. § 44-13-16, the purchaser at such sale acquired, not only the title of the beneficiaries, but that of the estate, so as to bar the rights of the adult heirs and all persons claiming under them, their rights being transferred to the property in which the proceeds of the sale were invested. Fleetwood v. Lord, 87 Ga. 592, 13 S.E. 574 (1891).   Pony homestead.    - A pony homestead, by the provisions of O.C.G.A. § 44-13-16 may be sold by an order of the judge of the superior court; but the law does not contemplate the pledging of a homestead to secure a prospective loan. Powell v. Powell, 159 Ga. 837, 127 S.E. 117 (1925).   Sale by wife after husband's death.    - A wife may not sell the homestead after the husband's death, though the executor of the husband joins in the deed and is authorized by will to do so. VanDyke v. Kilgo, 54 Ga. 551 (1875).   Service where children parties.    - Where widow's children were parties plaintiff in proceedings to sell a homestead under O.C.G.A. § 44-13-16, no service on them was necessary. Deyton v. Bell, 81 Ga. 370, 8 S.E. 620 (1889).    Cited in Broome v. Davis, 87 Ga. 584, 13 S.E. 749 (1891); Pritchett v. Davis, 101 Ga. 236, 28 S.E. 666, 65 Am. St. R. 398 (1897); White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932).   RESEARCH REFERENCES   C.J.S.   - 40 C.J.S., Homesteads, §§ 55, 68, 95, 153, 158, 176.   ALR.    - Debtor's exemption of proceeds of insurance on property itself exempt, 63 A.L.R. 1286.    Time as of which, and extent to which, homestead exemption attaches to property received in exchange for homestead, 83 A.L.R. 54.