13 S.E.2d 662 | Ga. | 1941
1. A widow is bound by her contracts of suretyship, and consideration flowing to her principal or cograntor is legal consideration making the contract binding upon her and her property. While a widow may waive her right to a year's support, either by contract expressing such waiver as to all property of the estate, or by deed conveying described property of the estate, yet she will not be barred thereby if at the time she was ignorant of the condition of the estate, or as to her rights in the estate.
2. Where a husband conveys land to secure a debt, which debt is unpaid at his death, his widow's year's support is subordinate to the security deed, and can embrace the fee in such property only by her paying the debt. If she and children execute a security deed conveying the same property to secure a note for funds with which to pay such debt, under rules of equity she must pay the latter debt before she is entitled to cancel the deed and hold the property free from debt under her year's support.
To this petition the defendant Doris L. Bassford filed a general demurrer on the grounds, that no cause of action is alleged, that no equity is shown, and that petitioner is barred from any relief by laches. To the judgment overruling this demurrer the defendant excepted (case No. 13604).
Doris L. Bassford filed answer denying the material allegations of the petition, and alleging, that at the time of the death of Warren Smalley the property described was subject to an outstanding loan of $1800, secured by a deed held by Mrs. Julia S. Williams; that petitioner had knowledge of her undivided interest in the property, because on December 11, 1917, she and her husband executed a security deed to George E. Dowling conveying to him said real estate to secure a loan, and on February 27, 1914, she and her husband conveyed the property to Mortgage Company of Augusta to secure a loan, and on April 8, 1916, she and her husband conveyed the property to Mrs. Julia S. Williams to secure a loan of $2100, which loan deed was recorded in the office of the clerk of the superior court of Richmond County, in realty book 8L. page 352; that petitioner executed all of these deeds and well knew that she had a one-half undivided interest in the property; that the loan from Mrs. Williams was made payable in two principal notes, one for $300 due one year from date, and the other for $1800 due two years from date; that the $300 note was paid, and the other for $1800 was renewed until after the death of Warren *645 Smalley; that at the time Samuel P. Langley made a loan to petitioner and the children of Warren Smalley the $1800 note to Mrs. Williams had not been paid, and the loan from Langley was made for the purpose of securing $1800 with which to pay Mrs. Julia S. Williams; and that all of the Langley loan was paid to Mrs. Williams in satisfaction of the loan deed executed by plaintiff and her husband. The defendant denied that Samuel P. Langley or his attorney misrepresented any fact to petitioner, or that they misled her as to her rights in her husband's estate.
Both the petition and answer were verified, and at interlocutory hearing they were put in evidence. Other evidence was introduced on the hearing, and in the main the evidence introduced by the parties tended to support their respective contentions. Judgment denying an interlocutory injunction was rendered, and the plaintiff excepted (case No. 13600). The two cases are dealt with and decided in the opinion, infra. 1. Concisely stated, the petition seeks cancellation of the Langley deed, in so far as relates to the land belonging to petitioner, because she was ignorant of her ownership and received no consideration therefor, and, as relates to land owned by the estate of her husband, because she is the beneficiary of a year's support embracing the same land. She admits that she joined the children as grantors in the deed, but contends that this is not a bar to the year's support.
She was a widow, and not a married woman, when the Langley deed was executed; hence the protection against contracts of suretyship provided by the Code, § 53-503, is not available to her. Farmers Bank of Bogart v. Bolton,
2. On interlocutory hearing the answer of the defendant and evidence introduced in support thereof showed that the petitioner and her husband jointly conveyed the land here involved to Mrs. Julia S. Williams to secure a debt, and that at the time of the death of the husband $1800 of this debt remained unpaid; and that every cent of the $1800 borrowed from the defendant Langley and secured by the deed under attack was applied to the payment and satisfaction of the debt against the property here involved. With the title to the land thus vested in a third person to secure debt, petitioner's right to a year's support was subordinate to that outstanding title; and in order for a year's support to embrace the property covered by the security deed it would be necessary to satisfy the secured debt. Burckhalter v. PlantersLoan Savings Bank,
Judgments affirmed. All the Justices concur.