Braswell v. Equitable Mortg. Co

• Decision Date: 28 February 1900
• Citation: 35 S.E. 322,110 Ga. 30
• Parties: BRASWELL v. EQUITABLE MORTG. CO. et al.
• Court: Georgia Supreme Court

35 S.E. 322

110 Ga. 30

BRASWELL

v.EQUITABLE MORTG. CO. et al.

Supreme Court of Georgia.

Feb. 28, 1900.

BILL OF EXCEPTIONS—WRIT OF ERROR-PARTY IN INTEREST. This court will not pass upon a question made in a bill of exceptions when it affirmatively appears that the plaintiff in error, an administrator, has no interest at all in its determination, and that neither he nor the estate he represents will be in any manner affected by a decision thereon, one way or the other; and when such bill of exceptions presents no other question the writ of error will be dismissed.

(Syllabus by the Court.)

Error from superior court, Dekalb county; J. S. Candler, Judge.

Suit by W. W. Braswell, administrator, against the Equitable Mortgage Company and others. From the decree, plaintiff brings error. Dismissed.

W. W. Braswell, for plaintiff in error.

Payne & Tye and Candler & Thomson, for defendants in error.

LITTLE, J. Braswell, as administrator of Brown, filed an equitable petition, making Mrs. Brown, widow of the intestate, Mrs. Fannie I. Brown, Mayson, and the Equitable Mortgage Company, defendants, and alleging that his intestate at the time of his death was possessed of a certain tract of land in Dekalb county, containing 112 acres, and no personal estate; that he obtained an order from the ordinary to sell said land, and in November, 1894, in pursuance of law, he sold the same to Almand & George for the sum of $1,610, at administrator's sale; that the sale was made for one-half cash, and the balance became due one year after the sale; that the purchasers complied with the terms of the sale, and he executed to them his bond for titles in accordance therewith; that the Equitable Mortgage Company claims to hold a deed of conveyance to said property, executed by his intestate in his life, to secure the payment of a loan of $1,200; that the loan was made at a usurious rate of interest, and the deed so made by his intestate is void. He alleges that the widow has made an application for the allowance of a year's support out of the estate; that Mrs. Fannie Brown is a creditor of the estate; that Mayson is also a creditor, for medical attention rendered the deceased in his last illness; that the estate is insolvent; and that all the creditors are about to bring suit against him. He prays that the mortgage company be required to surrender the deed which it holds, and that the same be canceled; that the creditors be enjoined from instituting common-law suits against him; and that the court will direct him as to the proper distribution of the funds in his hands arising from the sale of the land, and such as he may collect as the balance of the purchase price. The mortgage company answered, setting up its contract with the intestate, and denying usury. The case was referred to an auditor, who reported that the deed to the Equitable Mortgage Company, made to secure a loan by the intestate, was not usurious, and that the company was entitled to a judgment for the amount of its note, besides interest, attorney's fees, and costs, which should be a special lien on the land described. The auditor further found that Mrs. Susan Brown, widow, was entitled first to be paid the amount of a year's support set aside to her; that after the allowance for the year's support, and paying all costs of the case, the expenses of the administration, including attorney's fees, should be paid, then the claim of Mrs. Fannie Brown, and then any balance which remained should be paid to the Equitable Mortgage Company. To this finding of the auditor the administrator filed certain exceptions of law and fact, these exceptions being directed to so much of the report of the auditor as held the deed of the mortgage company...