Harris v. Powers
| Decision Date | 12 August 1907 |
| Citation | 58 S.E. 1038,129 Ga. 74 |
| Parties | HARRIS v. POWERS et al. POWERS et al. v. HARRIS et al. NOLAN et al. v. SAME. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
At common law a widow was not dowable of an equity of redemption.
[Ed Note.-For cases in point, see Cent. Dig. vol. 17, Dower, §§ 45, 57, 59.]
The common law of force prior to May 14, 1776, was adopted as the law of this state by the act of February 25, 1784 (Cobb's Dig. 721, § 3), except where modified by statutes or not adjusted to the conditions or system of government existing here.
[Ed Note.-For cases in point, see Cent. Dig. vol. 10, Common Law § 10.]
Where an owner of land made a deed to secure an indebtedness, and took a bond for reconveyance upon payment of the debt, and died without having paid any part of the debt, or having obtained a reconveyance, his widow was not entitled to take dower either in the land as a whole or in the equity of redemption, at least not without first redeeming the property.
[Ed Note.-For cases in point, see Cent. Dig. vol. 17, Dower, §§ 57, 59.]
Where the estate of the decedent was insolvent, and was placed in the hands of a receiver for administration by a court of equity, and the case was referred to an auditor for an accounting, creditors, whose claims would be affected by the allowance of dower, had a right to contest the widow's claim to have dower allowed to her in land to which the husband did not hold title at the time of his death, but only an equity of redemption.
The principles above announced were not changed by the fact that the receiver, under order of the court, sold the land which had been conveyed to secure the debts, paid off the indebtedness, and had a surplus on hand. Nor did it alter the case that creditors assented to the payment of the secured indebtedness (with an exception as to fees, touching which the question was reserved) in order to save accruing interest on the secured debts.
Where a promissory note was due five years from its date, with interest payable annually on a fixed day, but included a provision that, if the interest was not paid when due, the payee might declare the entire debt due; and where, after the failure to pay an installment of interest, the attorneys for the creditor gave notice to the administrator of the deceased debtor of an intention to bring suit on the note to the next term of court, and on the return day of such term suit was brought by the creditor for the entire amount of the note, this was evidence of an election to declare the whole debt due for nonpayment of the interest.
This would not be altered by the fact that the maker of the note had died, and an administrator had been appointed, nor because the creditor did not bring a separate suit on the note, but joined with other creditors in an equitable petition, praying to have its right enforced, and also for the administration of the estate by a court of equity.
Where a provision for the payment of attorney's fees is included in a note, the death of the debtor insolvent will not destroy the right to recover such fees as against the administrator, upon compliance with the statute in respect to giving notice.
Where notice was duly given, in accordance with the act of 1900 (page 53), to an administrator of an intention to bring suit upon certain promissory notes made by the decedent, which contained a provision for the payment of attorney's fees, and where the estate was insolvent, and by reasons of complications it was necessary to place the assets in the hands of a receiver, and to have an accounting as to assets and debts, and where, on the last day for bringing suit to the next term of the superior court (in this state called the return day), the creditors holding such notes and others filed an equitable petition under which a receiver was appointed and an administration of the assets of the estate had, and where the auditor, to whom the case was referred, found that the administrator had no money with which the notes might have been paid, and could not borrow it, and in effect that no payment could have been made, the holders of the notes were not prevented from recovering attorney's fees thereon because the suit was commenced on such return day.
Error from Superior Court, Bartow County; A. W. Fite, Judge.
Action between A. De R. Harris and H. M. Powers and one Nolan and others. From the judgment, Harris brings error, and Nolan and Powers assign cross-bills. Judgment on the main bill with exceptions affirmed, and on the cross-bills reversed.
Jno. L. Norris, for A. De R. Harris.
Thos. W. Milner & Sons, Jno. W. & Paul F. Akin, Joe M. Moon, Thos. C. Milner, G.H. Aubrey, and J.B. Conyers, for H.M. Powers and others.
This case arose upon an equitable petition, under which an insolvent estate of a decedent was placed in the hands of a receiver upon the application of creditors. It was referred to an auditor to take an accounting and make a report, with a view to the proper administration of the assets under decree of the court. Among the creditors who filed the original petition were the holders of deeds made by the decedent in his lifetime to secure certain debts, bonds to reconvey upon payment having been made to him by the grantees in the deeds respectively. There were also unsecured creditors. The widow claimed dower. One of the secured creditors claimed attorney's fees under a provision in the note held by it. An unsecured creditor also claimed attorney's fees. The auditor refused to allow them, and exception was taken. Pending the case, under an interlocutory decree of the court, the receiver sold the lands, paid off the holders of the secured debts, and had in hand a surplus amounting to several thousand dollars. The auditor found that the widow was entitled to dower in the equity of redemption, or, in lieu of it, in the surplus of the proceeds of the lands after paying off the debts secured by the deeds. To this other creditors filed exception, contending that the widow was not dowable in such equity or surplus. The widow filed exceptions, claiming that she was entitled to dower, not only in the surplus, but to be measured on the basis of the value of the entire lands. She sought to have set apart to her a sum of money in lieu of dower in the lands, alleging that this was by agreement under the statute. Civ. Code 1895, § 4695. Motions and counter motions were made to dismiss various exceptions, which were overruled. The presiding judge overruled all of the exceptions of law and fact, and entered a decree accordingly. All parties excepted; a main bill of exceptions, a cross-bill of exceptions, and two independent bills of exceptions being filed. With one of these we have dealt separately. Pendley v. Powers, 58 S.E. 653. The others we will consider together.
We deem it unnecessary to deal with the demurrers to exceptions and motions to dismiss them, or with exceptions to an allowance of an amendment to one set of exceptions, further than to say that we think there is enough properly before us to raise the questions above indicated, and we will deal with them accordingly.
It has been said that dower was introduced into Denmark by Sweyn the father of Canute, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals, and that, possibly, the English dower was a relic of the Danish custom, though the reason given for its adoption in England was the more practical one of making provision for the sustenance of the wife, and the rearing and education of the younger children. 2 Bl. Com. 129. If, indeed, dower had an origin so tinged with grateful gallantry, and having for its purpose the rewarding of the generous ladies of Denmark by conferring upon them a right in respect of their husbands' lands, with or without the consent of the husbands, it is not surprising that, when it became a part of the law of England, it should have been often declared to be a favored right especially by the courts of equity, which delighted in being called "courts of conscience." The effort to harmonize the holding of the courts of law that dower was a legal right, that seisin, which was necessary to the perfection of a freehold, was necessary to dower, and that a widow could only take dower in a legal estate, with general ideas of moral duty on the part of the husband to support his wife and children, and with broad equitable views, gave rise to a series of decisions which are not easily to be reconciled on a basis of sound and consistent principle. An excellent discussion of this subject will be found in Park on Dower, 124-140 (as contained 11 Law Lib. pp. 56, 64); D'Arcy v. Blake, 2 Sch. & Lefr. 388. Whatever real or apparent differences, however, there may have been among some of the decisions, the rule of the common law was ultimately determined to be that a widow could not take dower in an equity of redemption. In Dixon v. Saville, 1 Bro. C. C. p. 326, decided by the Lords Commissioners of the Great Seal in 1783, it was held that "a widow is not dowable of an equity of redemption." Lord Loughborough treated the rule as so well settled that, after considering the arguments which discussed numerous cases, he dismissed the entire matter in the following brief opinion: Mr. Park says: "This has been since recognized to be the law by universal practice, and by several of the most learned judges." Park on Dower, 137 (11 Law Lib., top p. 63). As early as 1712, in the...
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