Opinion
13600, 13604.
FEBRUARY 12, 1941. REHEARING DENIED MARCH 19, 1941.
Equitable petition. Before Judge Franklin. Richmond superior court. October 22, 1940.
Starkey S. Flythe and William K. Miller, for plaintiff.
Curry Curry, for defendants.
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.
Nos. 13600, 13604. FEBRUARY 12, 1941. REHEARING DENIED MARCH 19, 1941.
The petition of Elphy Smalley against Doris L. Bassford and Thelma A. Acton, as executrices of the estate of Samuel P. Langley, alleges, in substance, that petitioner is the widow of Warren Smalley who died on January 11, 1922, leaving six children; that there has been no administration of his estate; that during the lifetime of Warren Smalley petitioner and their six children resided with him on lots 12, 13, and 17 of block C on plat of Montgomery Estate, recorded in book 5R, p. 141, in the clerk's office of Richmond County superior court, and petitioner and the children have resided thereon continuously since the death of Warren Smalley; that petitioner furnished some of the money with which the land was purchased, and the title to two of the lots was at the time of purchase taken in Warren Smalley and petitioner jointly, and title to the other one was taken in Warren Smalley only, but petitioner was never aware of the fact that she had any title to any of the land until the time of preparing this petition; that petitioner is an ignorant colored woman and can neither read nor write; that her husband at various times executed liens on the property for the purpose of borrowing money for his own use, which money was used in his individual business, and at his request petitioner joined him in executing such liens; that petitioner by making her mark signed with her husband as grantor a security deed to Mrs. Williams, conveying all of the land described in the petition for the purpose of securing a debt of $2100, representing borrowed money which her husband used in his business, and this debt was unpaid at the time of his death; that soon after his death her six children entered into an agreement with Mrs. Williams, whereby they obligated themselves to pay the debt owed by Warren Smalley to Mrs. Williams, and petitioner was appointed by the children as trustee for handling the property described, to which Mrs. Williams held title to secure the debt of Warren Smalley, for the purpose of keeping it insured, paying the taxes thereon, and collecting rents therefor; that the children paid the claim of Mrs. Williams and satisfied it in full; that on July 11, 1925, the children borrowed $1800 from Samuel P. Langley, and at the request of Langley and his attorney, and because she was misled by them as to her rights and made to believe that she was an heir of her deceased husband, petitioner signed the note and security deed over the property described in the petition, along with the children, to Langley; that the estate of Warren Smalley was insolvent, and petitioner is not an heir of her husband, but is entitled to a year's support and dower out of his estate; that in 1940 the property described in the petition was duly set apart to the petitioner as a year's support by the court of ordinary; that Samuel P. Langley has died, and the defendants as his executrices have advertised the property for sale under power contained in the security deed referred to. The prayer was that title to petitioner in said property be confirmed; that the deed to Langley, in so far as it concerns petitioner, be canceled, and in so far as other parties are concerned that it be decreed inferior to petitioner's year's support; that the property be partitioned if necessary; and that the defendants be restrained from proceeding with the sale.
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 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, 162 Ga. 428 ( 134 S.E. 72); Singleton v. Farmers Merchants Bank, 55 Ga. App. 776 ( 191 S.E. 478). The petition admits that a consideration in the sum of $1800 was paid to the children for the deed under attack; and whether or not petitioner personally received any portion of that consideration, it constitutes a valuable and legal consideration for the deed, and is binding upon her as well as her individual property embraced in the deed. But as relates to the portion of the land belonging to the estate of petitioner's husband, the deed stands upon the same basis as a contract executed by a widow whereby she waives her right to a year's support. Such relinquishment of the right to claim a year's support will not constitute a bar if made under such circumstances as will prevent an election to take a child's part from constituting a bar to dower as provided in the Code, § 31-104. See Code, § 113-1007; McNair v. Rabun, 159 Ga. 401 ( 126 S.E. 9). The petition alleges that the Langley deed was executed by petitioner in ignorance of the condition of the estate, and because of a lack of understanding of her right to a year's support, brought about by the representations of Langley himself and his attorney. A cause of action is alleged. Giles v. Giles, 135 Ga. 683 ( 70 S.E. 335); Hobbs v. Hobbs, 35 Ga. App. 645 ( 134 S.E. 194); McLean v. McLean, 51 Ga. App. 751 ( 181 S.E. 707); Nix v. Nix, 55 Ga. App. 776 ( 191 S.E. 381). The judgment overruling the demurrer was not erroneous.
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. Planters Loan Savings Bank, 100 Ga. 428 ( 28 S.E. 236); Minchew v. Juniata College, 188 Ga. 517 ( 4 S.E.2d 212). It being shown that the consideration for the Langley deed satisfied the charge upon the property which under the law petitioner would have had to satisfy as a prerequisite to having it embraced in her year's support, and petitioner having come into a court of equity, she is subject to the rules of equity and particularly to the rule stated in the Code, § 37-104, that "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit." To comply with this rule, the plaintiff as the beneficiary of the year's support would be required, as a condition precedent to the cancellation of the Langley deed, to reimburse the grantee therein for the money which he advanced thereunder and which was used in satisfaction of a valid debt against the property conveyed. The evidence showing that petitioner had failed to meet this rule, she was not entitled to injunctive relief.
Judgments affirmed. All the Justices concur.