Opinion
13657.
APRIL 16, 1941. REHEARING DENIED MAY 16, 1941.
Injunction. Before Judge Grice. Tattnall superior court. December 6, 1940.
J. V. Kelley, for plaintiffs in error. Aaron Kravitch, contra.
1. Where a proper levy upon land has been made, the land is in the custody of the court from which the execution issued. Virginia-Carolina Chemical Co. v. Rylee, 139 Ga. 669 (4) ( 78 S.E. 27).
2. The validity of the lien of a judgment obtained more than four months before the adjudication in bankruptcy is not affected by the bankruptcy proceedings. Philmon v. Marshall, 116 Ga. 811 ( 43 S.E. 48); Camp v. Young, 119 Ga. 981 ( 47 S.E. 560).
3. Where land is in the custody of a State court by virtue of a levy made more than four months before the filing of bankruptcy proceedings by the defendant in fi. fa., the land remains in the exclusive jurisdiction of the State court for the purpose of satisfying the lien under which the levy is made. Virginia-Carolina Chemical Co. v. Rylee, supra; Kaminsky v. Horrigan, 2 Ga. App. 332 (2) ( 58 S.E. 497); United States Fidelity Guaranty Co. v. Murphy, 4 Ga. App. 13 (4) ( 66 S.E. 831); Cooper v. Dannenberg Co., 18 Ga. App. 615 ( 89 S.E. 1089).
4. Where land is thus in the possession of the State court, the bankrupt is not entitled to come into a State court and enjoin a sale under the levy in order that he may have the Federal bankruptcy court set aside to him as exempt the property levied upon; and especially is this true where the judgment which is the basis of the levy is founded upon a note containing a valid waiver of homestead and exemption. Urquhart v. Leverett, 69 Ga. 92 (4); Carter v. Peoples National Bank, 109 Ga. 573 (2) ( 35 S.E. 61).
5. Under the rulings made above, it was error for the court to grant a temporary injunction restraining a sale of the land until the bankruptcy court could pass upon the homestead exemptions of the defendant in execution.
Judgment reversed. All the Justices concur.
No. 13657. APRIL 16, 1941. REHEARING DENIED MAY 16, 1941.
On June 10, 1924, in a suit upon a note which contained a homestead and exemption waiver, the Tattnall Bank obtained a judgment against H. G. Smith for $457.96 principal and various smaller sums as interest, court costs, and attorney's fees. The execution issued upon this judgment, after having been duly recorded and kept alive by proper entries, was levied on October 7, 1936, upon a forty-five acre tract of land in Tattnall County as the property of the defendant in fi. fa. This levy was duly recorded on the general execution docket, but advertisement of sale thereunder was not begun until October, 1940. On October 20, 1940, Smith filed voluntary bankruptcy proceedings in the Federal district court, and was therein adjudged a bankrupt. In his petition the bankrupt scheduled the Tattnall Bank as an unsecured creditor and the above-mentioned tract of land as an asset. The value of all of the assets of the bankrupt was listed at $1627; and it was prayed that a homestead of $1600 be set aside from these assets. In this situation the bankrupt filed in the superior court of Tattnall County a petition to enjoin the Tattnall Bank and the sheriff of Tattnall County from selling the land levied on until his application for a homestead should be determined; it being alleged that the homestead, if granted, would be superior to the execution levied upon the property. The facts stated above appeared without dispute upon the interlocutory hearing. There was evidence that the land was not worth more than $500, which was less than the amount due on the execution. The judge granted a temporary injunction, and the defendants excepted.