It shall be the duty of any person who shall claim the benefit of the exemption allowed in this article to act in perfect good faith. As it is in the power of the debtor claiming an exemption of personal property to conceal part of his property or money and to claim the balance as exempt, it shall be the duty of the debtor, when he shall take steps in the probate court to have an exemption of personal property set off to him, to make a full and fair disclosure of all the personal property, including money, stocks, and bonds, which he may possess at the time. All such money or property which he may hold in excess of the exemption shall be subject to levy and sale for the payment of his just debts. If the money or other personal property which the debtor possesses at the time of his application or at the time he obtains the order of court setting off exempt property shall be fraudulently concealed or shall not be delivered up for the benefit of his creditors, no exemption shall be made in his favor until it shall be so delivered up. All orders of the court obtained by the fraudulent concealment of property or obtained while the debtor had personal property, money, stocks, or bonds which he kept out of the reach of the levying officer or did not in good faith deliver up for the benefit of his creditors shall be null and void and of no effect. In such event, the property set off to the debtor by such order or judgment shall be subject to levy and sale as if no such order or judgment had been rendered; and all property in which the debtor shall have invested the money, stocks, bonds, or personal property fraudulently concealed by him or kept out of the reach of his creditors shall be subject to levy and sale and liable to be sold for the payment of any debt then in existence. The debtor who is guilty of willful fraud in the concealment of part of his property which he possessed when he sought the benefit of the exemption shall on account of his fraud lose the benefit of the exemption, and his property shall be subject to the payment of all just debts which he owed at the time such fraud was committed; but the property, when once set off to him by order of the court, shall be exempt as against all debts contracted after that time.
(Ga. L. 1869, p. 23, § 1; Code 1873, § 2005; Code 1882, § 2005; Civil Code 1895, § 2830; Civil Code 1910, § 3380; Code 1933, § 51-203; Code 1981, §44-13-7; Code 1981, §44-13-6, 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 44-13-7 as this Code section. The 1983 Act also redesignated former Code Section 44-13-6, relating to survey of lands in different county, as present Code Section 44-13-5.
JUDICIAL DECISIONS
Section refers to constitutional homestead.
- The provision of O.C.G.A. § 44-13-6, that "it shall be the duty of each and every person who claims the benefit of the exemption allowed in this article . . . to act in perfect good faith," and that the exemption shall not be allowed to a claimant who is guilty of fraud, has reference to the constitutional homestead exemption, and not to the statutory exemption. In re West, 116 F. 767 (N.D. Ga. 1902); In re Dobbs, 175 F. 319 (N.D. Ga. 1909).
Effect of fraud.
- Under O.C.G.A. § 44-13-6 a bankrupt who does not make a full and fair disclosure of all the property owned by the bankrupt at the time of the filing of the petition in bankruptcy is not entitled to have any exemption set apart to the bankrupt by the trustee in bankruptcy. In re Waxelbaum, 101 F. 228 (N.D. 1900); In re Anderson, 224 F. 790 (N.D. Ga. 1915).
Duty of bankrupt.
- Under O.C.G.A. § 44-13-6 a bankrupt seeking an exemption must deal with perfect frankness with creditors and disclose and deliver all property except the exemption, and a failure to do so defeats the bankrupt's application, and a bankrupt, who just before and at the time of the bankruptcy sought to get property out of the reach of the creditors, was not entitled to the exemption. In re Cochran, 185 F. 913 (N.D. Ga. 1911).
Good faith requirement.
- The good faith required of a debtor by O.C.G.A. § 44-13-6 is to make a full and fair disclosure of property, and a court of bankruptcy is not justified in denying an exemption because of the debtor's fraud in other respects. In re Castleberry, 143 F. 1018 (N.D. Ga. 1905).
Time of disclosure.
- The full and fair disclosure and surrender of personalty, required by O.C.G.A. § 44-13-6, must be made at the time of the application, or at or before the order setting off the property exempt is granted. Any failure (until satisfactorily explained and accounted for, and the consequences repaired) is to be deemed intentional and, therefore, fraudulent. Torrance v. Boyd, 63 Ga. 22 (1879).
Prima facie case of concealment.
- Where financial and schedule statements show a great depreciation in assets and increase in liabilities, the statements and schedules made a prima facie case of concealment on the part of the bankrupt under O.C.G.A. § 44-13-6, and cast upon the bankrupt the burden of showing that the statements were false when made, or of explaining what became of the bankrupt's assets, and in the absence of such explanation it would be conclusively presumed that the bankrupt was concealing a portion of assets. In re Powell, 230 F. 316 (S.D. Ga. 1916).
Accounting for depreciation of assets.
- A bankrupt claiming an exemption under O.C.G.A. § 44-13-6 must give a better explanation than that the bankrupt "sold a great deal of goods, and sold some of them at less than cost, to try to meet obligations," where the bankrupt's schedule in bankruptcy shows a great reduction in assets. In re Stephens, 114 F. 192 (N.D. Ga. 1902).
Clean hands of party seeking exemption.- A bankrupt, whose business is carried on in the name of the son, as agent, without the bankrupt having anything to do with it, cannot claim an exemption therefrom allowed by law, which requires the person claiming it to come into court with clean hands, practically all the indebtedness having been contracted within the five months preceding the petition in bankruptcy, and all the best of the stock having been sold off at auction during the last of said months, leaving old stock, which, with fixtures, is worth less than the amount of the exemption. In re Williamson, 114 F. 190 (N.D. Ga. 1901).
Reconveyance after evasive conveyance.
- Under O.C.G.A. § 44-13-6 a bankrupt cannot be denied the right to a homestead exemption because he once conveyed the land claimed to his wife in a vain attempt to evade a debt, where it was reconveyed prior to the bankruptcy proceedings and was scheduled by him as his property. In re Thompson, 115 F. 924 (S.D. Ga. 1902).
Retention of money to pay fees and expenses.
- A party seeking a homestead cannot retain any amount of money which the party may deem necessary and needful to employ attorneys, pay licenses, and carry on business, but instead the party must account for it. McNally v. Mulherin & Co., 79 Ga. 614, 4 S.E. 332 (1887); In re Waxelbaum, 101 F. 228 (N.D. Ga. 1900).
Omission of property from wife's schedule.
- If any property be left out of the wife's schedule through the fraud of the husband, even though the wife was no party to the fraud and was ignorant of it, she will have to suffer the penalty which the law imposes upon the husband when he is the applicant. Kirtland, Babcock & Bronson v. Davis, 43 Ga. 318 (1871); Wood & Bro. v. Collins, 111 Ga. 32, 36 S.E. 423 (1900).
Gift to wife by insolvent.
- Though a gift of money or other property by an insolvent to his wife would be void as to creditors, it would be good as to the wife; and if she had actually disposed of such money or property before applying for an exemption out of the husband's property, her failure to include what was given her in the schedule would not vitiate her application, when it did not appear that the gift was made in anticipation of the application and for the purpose of concealing the property. Wood & Bro. v. Collins, 111 Ga. 32, 36 S.E. 423 (1900).
Person representing self to be head of family.
- Where one is not entitled to the homestead, but represents himself to be the head of a family consisting of himself and daughter, when in fact he has no such family, this is a probable fraud, and he loses the benefit of the homestead. Walker v. Thomason, 77 Ga. 682 (1886).
Attack of exemption by creditor's executor.
- Executors of a creditor may attack the exemption of a debtor as fraudulent, and they will not be estopped by the fact that, pending probate and qualification, they did not resist the application. Killen v. Marshall, 55 Ga. 340 (1875).
Collateral attack for insufficient description.
- The schedule filed by the applicant for homestead and exemption, should describe the personal property with reasonable certainty, but if the creditor failed to appear and object, on the ground that the schedule was insufficient, and it gives a general description of the property, and no fraud or unfairness is alleged or shown, the creditor will not be permitted to attack the judgment. Bartlett v. Russell, 41 Ga. 196 (1870).
Ruling of referee as res judicata against discharge.- Ruling of referee in bankruptcy, on objections to allowance of homestead exemption, that bankrupt had concealed property is not res judicata against the bankrupt's right to discharge. In re Frosteg, 252 F. 199 (S.D. Ga. 1918).
Cited in In re Hardy, 229 F. 825 (S.D. Ga. 1916); Long v. Hayslip, 227 F.2d 555 (5th Cir. 1955).