61 Ga. 218 | Ga. | 1878
Lead Opinion
This was a bill filed by the complainant against the defendants with a prayer for relief, on substantially the following statement of facts: The late Judge Peeples wished to purchase a house and lot in the city of Atlanta of Davis, who was the owner thereof, and made application to the complainant, as his friend, residing in the city of New York, to loan him the money to pay for it. The arrangement for the loan of the money, $5,000.00, was consummated through their mutual friend, W: P. Orme, and on the 25th of May, 1872, Judge Peeples made his two promissory notes for $2,500 each, payable to the complainant, one of which became due one^year after date, which has been paid, and the other became due two years after date, both of which notes were secured by a mortgage deed executed by said Peeples to complainant on the 26th of May, 1872. Although the mortgage bears date as above stated, the complainant alleges that the deed from Davis to Peeples, the notes and mortgage, were all executed at the same time. The complainant also alleges that said Peeples died in 1877 intestate, leaving said second note unpaid, that all his other property besides
The deed from Davis to Peeples for the house and lot, was executed prior to the act of 1875, providing that when the vendor sells land a.nd makes a deed thereto, and at the same time takes a mortgage for the purchase money, that the widow of the vendee shall not be entitled to dower in said land as against such vendor, until the purchase money is paid, therefore, the widow’s claim of dower would have been good against Davis if he had not been paid the purchase money for the house and lot, and the complainant cannot be in any better condition in that respect than Davis would have been if he should be subrogated to all the rights of Davis. By the statutes of this state, the widow and children of the intestate were entitled to a year’s support out of
The real trouble with the complainant is, that the intestate died before the payment of his debt, without leaving sufficient property to pay it, and the year’s support for his widow and children and her claim of dower — the year’s support and the widow’s dower having, under the law, the superior lien for payment to the complainant’s mortgage debt. There was no error in sustaining the defendants’ demurrer to the complainant’s bill.
Let the judgment of the court below be affirmed.
Concurrence Opinion
concurred in the decision, stating that