55 Ga. 361 | Ga. | 1875
Lead Opinion
This case came before the court below on an appeal from . the court of ordinary as to the allowance of twelve months’ support to the widow and two children of Daniel G. Murphy, deceased, under the provisions of the statute of this state providing therefor, on the following agreed statement of facts:
“On the 14th of December, 1871, W. C. Hewitt sold his interest in the Globe Hotel to Jackson & Julian, and took a mortgage on the furniture, etc.; that it was assigned to T. R. Vaughan January 1st, 1873, with the last note of Jackson & Julian, due January 1st, 1873, for $4,280 00; that .early in 1872, Julian sold out his interest to Jackson, subject to this mortgage; that on the 23d of December, 1872, Murphy purchased from Jackson one-half interest in said furniture, subject to said mortgage, and entered into copartnership with Jackson, under the style of Jackson & Murphy; that on the*363 day of this assignment of said mortgage to Vaughan, Jack-son & Murphy executed another mortgage to Vaughan to secure this note, and to cover all the furniture then in the hotel, and agreed to pay counsel fees of ten per cent, and expenses of foreclosure if not paid February 3d, 1873, to which period Vaughan extended the time of payment. These mortgages were foreclosed February 5th, 1873, and levied August the 10th, 1873; the firm of Jackson & Murphy was dissolved February 21st, 1873, by Murphy purchasing Jackson’s interest, subject to this mortgage, and the business carried on alone by Murphy until his death, in the spring of 1874, he making payments on the mortgages from time to time, but never having paid off the same; the furniture was sold by T. R. Vaughan, who qualified as Murphy’s administrator, pursuant to an order of the court of ordinary, he having taken out letters as creditor, on the 6th day of July, 1874. Furniture to the amount of $419 50 has been claimed by Frances Murphy, and the same turned over to her; she has also received $107 00 on account of her year’s support. Beyond this furniture so mortgaged (except that in the hands of Mrs. Murphy) the said Murphy was possessed of no estate at the time of his death. The proceeds of the sale of this mortgaged furniture is $2,045 00, a sum not sufficient to satisfy the mortgages. This mortgaged furniture was duly inventoried and appraised and returned by Vaughan, the administrator and objector, as the property of Murphy,'to the court of ordinary, was sold as the property of Mwrphy’s estate, and the proceeds are now in the hands of Vaughan, as administrator of Murphy. The objector maintains that the estate of Murphy comprises only the equity of redemption of the. mortgage; that is, the value of the furniture less the amount of the mortgage; the applicant maintains that the estate of Murphy comprises the whole value of the furniture.” On this agreed statement of facts the court decided in favor of the objector; whereupon the applicant excepted.
Let the judgment of the court below be affirmed.
Concurrence Opinion
concurring.
There were two successive partnerships, each of which mortgaged the same property to secure the same debt, a debt of the first partnership. The second mortgage was not given to supersede the first, but was cumulative only. Each partnership consisted of two members, one of whom was common to both firms. This member, on the dissolution of the first firm, bought out his copartner, and, for a time, was sole owner. He then sold a half interest to a third person, by which means the second firm came into existence. Among the partnership assets in both these transactions, was the mortgage property; and the sale, each time, was made subject to the first mortgage. During the continuance of the second partnership the creditor granted an extension of the time of payment, and the second mortgage was executed by that firm as cumulative security. It, moreover, covered some additional property, and stipulated for the payment of counsel fees. Both mortgages were foreclosed, and shortly afterwards, the new partner bought out his copartner, and thus became sole ower of the property,
The case was tried in the court below upon an agreed state of facts; and the only question submitted to the judge ivas whether the estate of the deceased comprised the whole value of the property or only the equity of redemption; that is to say, the value, less the unpaid mortgage debt. It was further agreed that should this question be decided in favor of the widow, she should have a verdict, and if against her she should take nothing. The property was under lien, both when the deceased purchased the first half interest, and when he purchased the second half. He took it subject to that lien. The whole legal title vested in him, but vested as it was in the hands of his vendor, incumbered. It is to be presumed that he gave a less price in. consequence of the incumbrance; but whether he did or not, his purchase could not divest the creditor’s right to be paid out of the property or its proceeds. The claim for year’s support will take precedence of any lien with which the deceased owner incumbered his title, but cannot go back and throw of liens which adhered to the title when he acquired it. As against the mortgagee, the deceased had the mere legal title, or what, in Georgia, we loosely term the equity of redemption; and therefore, on the question submitted for decision, the case is with the mortgagee. The decisive fact is that the deceased was not a member of the first partnership by which the original paramount lien was creafed.
Dissenting Opinion
dissenting.
'The reasons for my dissent from the judgment pronounced id this case are clearly, if not fully, set out in the syllabus handed to the reporter. This court has decided, and the statute declares, that the year’s support is part of the expenses of administration, and shall be paid like them in preference to all debts. In Cole and children vs. Elfe, 23 Georgia Reports, 235, it is ruled that such year’s support is a superior lien to any debt the deceased can make. In Elfe vs. The Macon Building and Loan Association, 23 Georgia Reports, 197, it is ruled that the year’s support has preference over a mortgage. Rust, Johnson & Company vs. Billingslea, 44 Georgia Repoi'ts, 306, decides that the year’s support has preference over everything in the way of debt, and distinguishes between it and dower and. homestead in this particular. In Elfe vs. The Macon Building and Loan Association, Benning, judge, dissented, because bethought the mortgagee took little, but he stands alone. In Davis et al.,' vs. Anderson d al., 1 Kelly, 176, the court, the present chief justice delivering the opinion, decided that the mortgagee in Georgia, takes no title; and it has been so ruled, either by a unanimous or majority court ever since, so far as I can ascertain. It follows that if A sells to B any property on a credit, and mortgages it for purchase money and die, the year’s support is preferred to the mortgage in the distribution. I can imagine no harder case against the creditor than that, nor can I see any reason in the distinction between that ease, and where B buys property already mortgaged by his vendor. The one is hard as the other.