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55 Ga. 361

Murphy v. Vaughan

Supreme Court of Georgia

Decided July 15, 1875

Supreme Court of Georgia · decided 1875-07-15

<p>1. The widow's claim for year’s support will talce precedence of any lien with which her deceased husband incumbered his title, but cannot go back and throw off liens which adhered to the title when he acquired it.</p> <p>2. Parties at interest may, by consent, even where one of them has a legal advantage and might urge the principle of estoppel, treat the proceeds of property sold by an administrator as standing in the place of the property. The agreement of counsel in the present case qualifies the right of each party to the proceeds, just as it was qualified by law in respect to the property itself.</p> <p>Jackson, Judge, dissenting.</p> <p>1. A mortgage in Georgia is only a security for a debt; it passes no title to the mortgagee: Code, section 1954; Davis et al. vs. Anderson et al., 1 Kelly, 176.</p> <p>2. The purchaser from the mortgagor, therefore, acquires title to the property subject to the lien that the mortgagee has thereon; but such lien constitutes no title, it is only security for a debt.</p> <p>3. If the mortgagor die, the title to the mortgaged property is in his estate; and that property so mortgaged is subject to distribution by his administrator, and all expenses of administration should be paid before the debt secured by the lien of the mortgage.</p> <p>4. Among these expenses of administration the statute distinctly names twelve months’ support of the widow and orphans of the deceased, as if to rank it higher than any debt and put its payment beyond peradventure, if the deceased died possessed of any property at all: Elfe vs. Macon Building and Loan Association, 26th Georgia Reports, 197; Cole vs. Elfe, 23d Ibid., 235.</p> <p>5. The only property of which deceased, in the case at bar, died possessed, is personalty; certain furniture which he purchased from a mortgagor; that furniture, or its proceeds, is not enough Jo pay the debt due the mortgagee and the year’s support. It was in his possession when he died. The title was in him, subject to the mortgage debt. It was administered as his property and sold as such, and the proceeds should first be applied to the expenses of administration, in which the statute includes the year’s support for the widow and orphans: See Code, sections 2571, 2533; Rust, Johnson & Company vs. Billingslea, 44th Georgia Reports, 306.</p> <p>6. It can make no difference in principle that the property was once partnership property, and deceased a member of the firm; the question is, did he buy, whose was the title at his death ? Did it pass out of the partners into him, and was he possessed of it as his own at his death, subject only to the mortgage debt ?</p> <p>7. Where the mortgagee himself administers on the estate of deceased, returns the property in the inventory under oath, sells it as the property of the estate, and thus solemnly swears repeatedly, and puts the oaths on record in the court of ordinary that the property and proceeds do belong to the estate of deceased, he is estopped by every principle of sound law and right reason from denying the title of his intestate : Code, sections 2516, 2517, 2522, 2523, 2525; Benjamin vs. Gill, 45th Georgia Reports, 110.</p> <p>8. The agreement of counsel to submit to the court the question of title under the facts agreed upon, does not waive the right of the widow to apply the doctrine of estoppel to the administrator, nor does it waive her right to that which the law gives her under the facts, her twelve months’ support for her and her children; much less does such agreement waive the right of the infant children to their twelve months’ support.</p> <p>9. Therefore, I think this widow and her children should have their year’s support out of the proceeds of this property, and that the judgment of the court below should be reversed.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1875-07-15

How this case has been cited

Cited by 11 later decisions — most recently April 1964

1 district · 10 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Jackson, Judge,

¶1dissenting.

¶2'The reasons for my dissent from the judgment pronounced id this case are clearly, if not fully, set out in the syllabus handed to the reporter. This court has decided, and the statute declares, that the year’s support is part of the expenses of administration, and shall be paid like them in preference to all debts. In Cole and children vs. Elfe, 23 Georgia Reports, 235, it is ruled that such year’s support is a superior lien to any debt the deceased can make. In Elfe vs. The Macon Building and Loan Association, 23 Georgia Reports, 197, it is ruled that the year’s support has preference over a mortgage. Rust, Johnson & Company vs. Billingslea, 44 Georgia Repoi'ts, 306, decides that the year’s support has preference over everything in the way of debt, and distinguishes between it and dower and. homestead in this particular. In Elfe vs. The Macon Building and Loan Association, Benning, judge, dissented, because bethought the mortgagee took little, but he stands alone. In Davis et al.,' vs. Anderson d al., 1 Kelly, 176, the court, the present chief justice delivering the opinion, decided that the mortgagee in Georgia, takes no title; and it has been so ruled, either by a unanimous or majority court ever since, so far as I can ascertain. It follows that if A sells to B any property on a credit, and mortgages it for purchase money and die, the year’s support is preferred to the mortgage in the distribution. I can imagine no harder case against the creditor than that, nor can I see any reason in the distinction between that ease, and where B buys property already mortgaged by his vendor. The one is hard as the other. *368Nor can I see what difference it can make that the vendor is a partnership, and the vendee one of the partners. The case of Boone vs. Sirrine, 38 Georgia Reports, 121, is clearly unlike this at bar. There the title never passed to the vendee, and the ruling is put on that ground. There was no sale to the deceased in that case. But the case of Benjamin vs. Gill, 45 Georgia Reports, 110, ought to conclude this case. There it is ruled expressly that trustees are estopped from setting up title adverse to the trust, and their actions and returns thereon. This administrator, who is the creditor, returned this property to the appraisers, swore that it was the estate’s, sold it as the estate’s, and is estopped from setting up title adverse to the estate. Out of his own mouth, his own oath, he is condemned, and this furniture is thé estate’s, and subject to distribution. The intestate held it as his own for fifteen months, paid this mortgage debt, in part, as his debt, died in possession of the property, and I think, in justice and equity, the widow and little ones ought to have one year’s support out of it in preference to all debts, liens or encumbrances. I think the law wise. I am unwilling to fritter it down to a shadowy emptiness, by drawing invisible distinctions, but I stand upon the decisions of this court from its foundation to this time, and I think, upon the rock of justice, charity and benevolence, as well as the law. Besides all this, it has been repeatedly and distinctly ruled by this court that the sale of an administrator to pay debts diverts all liens; and the fund becomes subject to distribution under the fules of priority declared by the statute of distributions. In the cases cited below, it will be found that the reason given for divesting liens, is, that after death, a different rule prevails in regard to priority of dignity and right; and it is distinctly held that such sale divests the lien of judgments and of taxes due the state or. the United States, at least, that expenses of administration, in which the year’s support is included, come under the next bead to the funeral expenses, then come taxes and debts due the state; and then trust debts; four classes are put before judgments or the vendor’s lien: and I cannot see the greater *369sanctity of a mortgage than all of these liens: Sims vs. Ferrell, 45 Georgia Reports, 585, 598; Carhart vs. Vann, 46 Ibid., 389; Stallings vs. Ivey, 49 Ibid., 274.

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