Allen v. J. W. Lathrop& Co.

• Decision Date: 31 July 1872
• Citation: 46 Ga. 134
• Parties: GEORGE W. ALLEN et al., plaintiffs in error. v. J. W. LATHROP& COMPANY, defendants in error.
• Court: Georgia Supreme Court

46 Ga. 134

GEORGE W. ALLEN et al., plaintiffs in error. v. J. W. LATHROP& COMPANY, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

*Foreclosure of mortgage. Description. Advances. Estoppel.

Title. Tried before Judge Cole. Houston Superior Court. December Term, 1871.

J. W. Lathrop and Company commenced proceedings to foreclose a mortgage on real estate executed by "James H. Allen, George W. Allen, Eugenia C. Dunlap, and James M. Ward, in right of his wife Cornelia Ward, legatees under the last will and testament of Hugh Allen, deceased, " "in consideration of advances in money and plantation supplies, to be advanced to said James M. Allen by said James W. Lathrop and Company aforesaid, said supplies and money being advanced by said J. W. Lathrop and Company for the mutual benefit of said James H. Allen, George W. Allen, Eugenia C. Dunlap, and James M. Ward, in right of his wife Cornelia Ward, said supplies and money being advanced for the purpose of carrying on the farm for the year 1870, in the county of Houston, in said State, " "to secure said James W. Lathrop and Company for the same." The mortgage was dated January 12th, 1870. The rule nisi recited that there was due to plaintiffs on January 10th, 1871, $4,858 21.

James H. Allen objected to the foreclosure of said mortgage upon the following grounds, to-wit:

1st. Because he holds said realty as executor of Hugh Allen, deceased; said estate has never been settled, and the said land has not been turned over to the legatees of said Hugh Allen; that there are now outstanding debts against the estate of said Hugh Allen, and it will be necessary for defendant, as executor as aforesaid, to administer upon said land for the payment of said debts, and that said land is, by the will of Hugh Allen, deceased, charged with the payment of certain legacies in said will set forth, which will be sufficient to exhaust the whole of said land.

2d. That as guardian for S. W. Allen, G. E. Allen, and N. E. Allen, minors of Newton Allen, deceased, he is entitled to a distributive share of said land, and that by the conditions of the last will and testament of said Hugh Allen, *said land so mortgaged, as aforesaid, is given for the sole and separate use of the several legatees in said will mentioned, and that none of the defendants to the above rule had any legal right to sell said land or create any incumbrance thereon, the same being trust property.

The remaining mortgagors also filed objections to the foreclosure unnecessary here to be set forth.

The jury returned a verdict for the plaintiffs for the sum of $4,858 21, with interest from January 10th, 1871.

The defendants assign the following errors upon the trial, to-wit:

1st. The Court erred in not granting a continuance upon the ground that James H. Allen, as guardian for the minors of Newton Allen had: after filing objections to said foreclosure and before the trial, been removed from his guardianship and no other guardian had been appointed.

2d. The Court erred in allowing said mortgage to be introduced in evidence, said mortgage describing no debt with sufficient accuracy and being given to secure the payment of debts not in existence at the time of the execution of the mortgage, and for debts of an indefinite amount.

3d. The Court errred in rejecting as evidence the last will and testament of Hugh Allen, deceased, sought to be introduced for the purpose of showing that the lands included in the mortgage comprised all of the lands mentioned in the will, and that the minors of Newton Allen were legatees under said will and interested in said realty; that there had been no settlement of the estate, and the lands were incumbered with the payment of debts and legacies which were still unsettled; that there had not been any assent of the executor to the execution of the mortgage: that by the terms of the will the mortgagors were prevented from selling or incumbering said realty, and that they had no interest in the land to mortgage.

Duncan & Miller; Poe, Hall & Poe, for plaintiffs in error, 1st. Defenses to foreclosure of mortgage: Code, secs. *3892, 3903. 2d. A mortgage cannot be created to secure a debt not in existence: Code, sec. 1945; 25th Ga. R., 176. 3d. There\', had been no assent of the executor: Code, sec. 2416; 42d Ga. R., 123. 4th. The will was admissible in evidence: 30th Ga. R., 671.

Warner & Grice, for defendants. 1st. Defenses to foreclosure of mortgage: 36th Ga. R., 499; Code, sec. 3889; 19th Ga. R., 14; 25th Ib., 383. 2d. Mortgage valid to secure future advances: 4th Kent's Coms., 175; 2d Powell on Mort., 533; 1st. Hillard on Mort., 286; 17th Pick. R., 414; 2d T. R., 462; 1 McC. Ch. R., 265; 2d Johns. Ch. R., 283; 25th Ga. R., 167; Stokes v. Hollis, 42d Ga. R., 262; Hinton v. P. W. Sims & Co., decided April 30th, 1872. 3d. Assent of executor: Code, sec 2416.

McCAY, Judge.

Without question the common law rules make a mortgage which, on its face was to secure future advances, sufficiently certain: 4 Kent, 175; 1st Hilliard on Mortgages, 210-215, where...