McCord v. Thompson

61 S.E. 1121, 131 Ga. 126, 1908 Ga. LEXIS 35

• Court: Supreme Court of Georgia
• Decided: July 22, 1908
• Status: Published

Opinion

Beck, J.

(After stating the facts.)

1. To the petition as originally filed the plaintiff offered an amendment alleging that, the note and mortgage referred to in. the petition were given for the payment of the debt of her husband; and another amendment alleging that “the transfer of her estate was without the approval of the ordinary, and so void.” To each-amendment the defendant demurred, specially, on the ground that the same was “not clear and distinct but confused,” and on the further ground, “that said parts set out no sufficient cause of action.” The court below sustained the demurrer, and to this ruling the plaintiff in error excepted. We think the court should have allowed the amendment first referred to, and erred in sustaining the demurrer thereto. The allegations of the amendment, taken in connection with'those of the petition, show with sufficient clearness and distinctness that the petitioner was insisting that the mortgage, which she sought to have cancelled, was given to secure the payment of a note which had itself been given for the debt of her husband, and that the mortgage created by its terms a lien upon property that had been set apart to her as a year’s support from the estate of her deceased husband. The year’s support, so set apart, embraced all of the estate of the decedent. The note, having been given for the debt of her husband, and upon no other consideration, was without consideration and not binding upon the maker; and the amendment, which had for its purpose the distinct statement of the fact that the note and mortgage in question had been given in payment of the husband’s debts, in a case where the note and mortgage are attacked on that ground, was material and germane and should have been allowed.

But the allegation that the incumbrance on her property (and clearly that was what the pleader meant when he used the expression, “the transfer of her estate”) was without the approval of the ordinary was properly disallowed. Such an allegation was totally immaterial. We presume that,- in offering the amendment last referred to, counsel for petitioner had in view the provision of the Civil Code, §3473, which provides, that, “When the whole of an estate is set apart as provided in section 3465, the widow may pay so much and such parts of the debts of her deceased husband as she may think proper, consistently with her means, with the advice and consent of the ordinary.” But the section just quoted does not contemplate a creatibn by the widow of such an incumbrance upon the estate set apart to her as a year’s support as the one which is attacked by the petition in this case. For the widow to make a payment of such parts of her deceased husband’s debts “as she may think proper” is one thing, and to create an incumbrance like the one in question here, covering her entire property and payable in the future, is another and quite different thing. And it was not necessary, in order for her to have the note and mortgage in question declared void as being without consideration, having been given for the debts of her deceased husband,' for her to allege that such note and mortgage were executed without “the advice and consent of the ordinary;” for, if they had been executed with the ordinary’s advice and consent, they would still have been unenforceable as against her, not being based upon any valid consideration. Smith v. Head, 75 Ga. 755.

2. There was evidence in the case from which the jury would have been authorized to find that the note and mortgage were given by the wife in payment of the debt of her husband, and were, therefore, without consideration. And as such a finding would have entitled the petitioner to at least a part of the equitable relief sought, the court erred in granting a nonsuit.

3. The court below construed the note and mortgage in question in accordance with the ruling in the third headnote. In addition to the demurrer and the question raised thereby, which we have already disposed of, there appears in the record a demurrer containing many grounds; but no ruling of the court below in reference thereto is complained of, and so far as this record discloses, it was neither considered nor passed upon, and therefore, while it appears in this record, no question in regard to it is raised for decision here.

Judgment reversed.

All the Justices concur.