183 Ga. 567 | Ga. | 1936
Janie L. Pinckney brought suit against Stella Wassman Weil, asking injunction against a sale advertised by Weil under a deed to secure a debt. Practically' the undisputed evidence showed that L. P. Pinckney, husband of the plaintiff, borrowed $1000 from defendant, and gave a deed to secure the loan. Subsequently he died leaving the plaintiff, his wife, and several minor children. The ordinary of Richmond County duly set apart, as a year’s support to the widow and minor children, the equity in said real estate. The original debt was for $1000. After-the grant of the year’s support, a new deed was made on July 27, 1925, by the plaintiff to the defendant, conveying the same property to secure a debt of $1500, to wit, the original $1000 and $500 additional, this deed reciting that the conveyance was made to secure "a loan for the purpose of raising money for the support of plaintiff and her minor children,” and the deed gave power of sale. On the same day. the defendant Stella Wassman
The court declined to grant an injunction or a supersedeas; and we think this judgment was correct. The transaction of canceling the deed from the husband, and the giving of the new deed by the plaintiff were contemporaneous transactions on the same day, and constituted one integral transaction. The deed given by the husband was superior to the right of a widow to a year’s support, and the property could have been sold to pay the debt. The case of Baker v. Kimzey, 34 Ga. App. 184 (128 S. E. 923), involved a similar transaction, in which the court held: “Where the maker of a deed to secure a debt dies, and his widow and the holder of the security deed and the administrator on his estate all agree that the land shall be sold by the administrator, and the administrator, after procuring an order of sale from the ordinary and advertising as required by law, sells the land at public outcry, before the court-house door (where a large crowd is assembled), to the highest bidder, at a fair price, after first telling those present that he is selling the land free from all liens and that the title is absolutely good, it is lawful and proper for the administrator to pay off the secured loan from the proceeds of the sale
At the time it was sought to effect the sale the additional $500 loaned had been paid, and it was sought to sell the property in order to collect the balance of the debt, with interest. The children had become of age, and four of them had lived with the widow upon the property. It has been held that while a wife may not ordinarily assume the debts of her husband, she may, when she purchases property, in order to secure an unencumbered title pay off any debts created by him which are a lien upon the property purchased. Vizard v. Moody, 119 Ga. 918, 921 (47 S. E. 348); Anderson v. Higginbotham, 174 Ga. 565 (163 S. E. 477); Lowenstein v. Meyer, 114 Ga. 709 (40 S. E. 726); Taylor v. American Freehold Land Mortgage Co., 106 Ga. 238 (32 S. E. 153); Daniel v. Royce, 96 Ga. 566 (23 S. E. 493). Under these decisions it appears that the wife was made liable for the debt. It is clear that the equity in property, subject to a loan deed, may be set apart as a year’s support. Whatley v. Watters, 136 Ga. 701 (71 S. E. 1103). '“Where land has been set apart to a widow as a year’s support’for herself and minor children, the widow, without an order from any court, may lawfully sell the property for the purpose of obtaining a support for the beneficiaries thereof, and
Judgment affirmed.