Hawes v. Glover

• Decision Date: 17 August 1906
• Citation: 55 S.E. 62,126 Ga. 305
• Parties: HAWES v. GLOVER.
• Court: Georgia Supreme Court

55 S.E. 62

126 Ga. 305

HAWES v. GLOVER.

Supreme Court of Georgia

August 17, 1906

Syllabus by the Court.

Since the passage of the act of September 26, 1883 (Acts 1882-83 p. 104; Civ. Code 1895, § 3782), the statute of limitations relatively to the debts of a decedent, is suspended during the period of time between his death and representation upon his estate, if such period does not exceed five years. Whether the decision in Johnson v. Johnson, 5 S.E 629, 80 Ga. 260, was rendered in view of this act cannot be definitely determined, as the act was not referred to by the court. If it was so rendered, the ruling there made would go no further than holding that this act was not applicable to a case in which the period of time between the death of a debtor and representation taken upon his estate had completely expired before it was passed. In the present case even the debt itself, sought to be enforced against the estate of the decedent, was created long after the act of 1883 was passed, and the time between the death of the debtor and representation upon her estate was clearly covered by it. Consequently, in holding that the statute of limitations, relatively to this debt, was suspended while the estate of the deceased debtor was unrepresented, we have not found it necessary to overrule the decision in Johnson v. Johnson, supra.

Where one of the joint obligors upon a promissory note gives a mortgage to secure its payment, and, after his death, the holder of the note and mortgage institutes a proceeding in the nature of a foreclosure of the mortgage, a surviving co-obligor upon the note is a competent witness, in such proceeding, to prove the execution of such mortgage, if, at the time he testifies, the note as to him has become barred by the statute of limitations.

Where a husband signs his wife's name to a mortgage purporting to be executed by her, in her immediate presence, and by her express request and direction, the effect of such signature is the same as if she had signed the mortgage herself.

A seal is not necessary to the validity of a mortgage, even upon real estate; and a mortgage is valid, as between the parties thereto, without any attesting witness, and without being recorded.

As the plea of coverture is a personal privilege available only to the feme covert or her privies in blood or estate, a mere creditor of a married woman, even in case of her insolvency, cannot attack a mortgage executed by her, upon the ground that it was given to secure the debt of her husband and son.

Section 2727 of the Civil Code of 1895, which provides that an unrecorded mortgage is "postponed to all other liens created or obtained prior to the actual record of the mortgage," refers only to liens created or obtained during the lifetime of the mortgagor.

Error from Superior Court, Jones County; H. G. Lewis, Judge.

Action by Joanna Hawes against W. J. McMichael. Judgment for defendant and on levy of execution S. M. Glover gave notice of lien. On trial of issue, judgment was rendered finding the fund in dispute should be applied to the claim of S. M. Glover, and plaintiff brings error. Affirmed.

Where one of two joint obligors on a note gives a mortgage to secure it, and after his death the mortgagee sues to foreclose, a surviving co-obligor on the note is a competent witness to prove the execution of the mortgage, if, when he testifies, the note as to him has been barred by limitations.

Mrs. Joanna Hawes, as trustee for herself and her children, obtained a judgment against W. J. McMichael, as administrator of the estate of Mrs. Emily J. McMichael. The judgment was special as to certain described lands and general as to the other property of the decedent.

The execution issuing from this judgment was partially satisfied by the sale thereunder of the lands covered by the special lien; and was then levied upon a lot of land in Jones county, which was the property of the estate of the defendant in execution. This lot of land was advertised for sale, under the levy, by the sheriff of the county; whereupon Mrs. S. M. Glover gave notice that she claimed a mortgage lien upon it. An agreement was then entered into between the judgment creditor, the mortgagee, and the administrator, providing for the sale of the entire interest in the land by the sheriff under the execution, and that the plaintiff in fi. fa. and Mrs. Glover, who claimed the mortgage lien, should file their respective petitions, in the nature of a money rule, against the sheriff, setting up their respective claims against the fund realized by the sale, and have the question as to who held the superior lien upon the proceeds of the sale determined by a verdict and judgment in the superior court, reserving to each the right to attack the validity of the lien claimed by the other. The land was accordingly sold by the sheriff. The parties filed their respective petitions, claiming the fund. The sheriff answered, and it appeared that the fund in his hands was not sufficient to satisfy the claim of either of the contesting creditors. Upon the trial of the issue thus formed, Mrs. Hawes, trustee, introduced her execution, and it was admitted that the land levied upon and sold thereunder was a part of the estate of Emily J. McMichael, in the hands of her administrator, W. J. McMichael, and that the funds in controversy were derived from the sheriff's sale of the same. It was further admitted that the judgment in favor of Mrs. Hawes, trustee, was based upon notes of Mrs. E. J. McMichael. Mrs. Glover introduced W. J. McMichael as a witness, for the purpose of proving the execution of the mortgage claimed by her by Mrs. E. J. McMichael. The witness who testified that Mrs. E. J. McMichael was his wife, was handed a written instrument, in the form of a promissory note and a mortgage upon the land in question to secure the payment of the same, as follows: "December 18, 1894. On or before the first day of December, 1895, and 1896, I promise to pay to Mrs. S. M. Glover, or order, seven hundred dollars," etc. Then followed waiver of homestead and the mortgage in question. It concluded as follows: "In testimony whereof I have hereunto set my hand and seal the day and year above written. [ Signed] E. J. McMichael. W. J. McMichael. J. S. McMichael. Signed, sealed and delivered in the presence of: Witness as to the signature of J. S. McMichael; J. S. Stewart, H. T. Powell, Notary Public, Bibb Co., Ga."

Indorsed upon it was an entry by the clerk of the superior court of Jones county, that it had been recorded on a named date, which was long prior to the date of the judgment in favor of Mrs. Hawes, trustee. But the attempt to record it had been made without any probate of the mortgage whatever. When the witness was asked to state whether he signed Mrs. E. J. McMichael's name to this instrument at her request, the question and the answer sought to be thereby elicited were objected to upon the following grounds: (a) Because, under the evidence act (Civ. Code 1895, § 5269), the witness was not competent to testify as to any transaction with his deceased wife. (b) Because it appeared that the witness and Mrs. E. J. McMichael were joint obligors on the paper, and, under the provisions of the act approved December 21, 1897 (Acts 1897, p. 53), the witness, being the administrator of the estate of Mrs. E. J. McMichael, and a co-obligor on the note, should not be permitted to testify to any matter that would relieve or modify his own liability on the note and tend to make the estate of Mrs. McMichael primarily liable thereon. (c) Because the authority to execute a mortgage on real estate must itself be executed with all the formality required in the case of a mortgage, and the witness should not be allowed to testify to a verbal authority given to him by Mrs. McMichael. The court overruled the objection, and the witness testified: "E. J. McMichael was my wife. I signed her name to that paper by her verbal request, under her direction, and in her presence. The estate of Mrs. Emily J. McMichael is insolvent." When the mortgage was offered in evidence, it was objected to upon the grounds, that there were no subscribing witnesses to the signature of Mrs. McMichael; that it was not a sealed instrument, and that it had never been recorded. These objections were overruled and the mortgage admitted in evidence. While W. J. McMichael was on the stand as a witness, counsel for Mrs. Hawes, trustee, upon cross-examination, asked him "if the paper offered by Mrs. Glover as a mortgage was not a security obligation on the part of Mrs. E. J. McMichael, and if (she) was not as to said obligation a surety for her husband, W. J. McMichael, and her son, J. S. McMichael." This question was objected to, upon the ground that the plea of coverture was a personal one and could not be urged by the plaintiff in fi. fa. Counsel propounding the question stated to the court that he expected to prove by the witness that Mrs. McMichael, being a married woman, signed the mortgage as surety for her husband and her son, and that this fact was known to Mrs. Glover. The court sustained the objection and refused to permit the witness to answer the question. After the conclusion of the evidence, the court, on motion of counsel for Mrs. Glover, directed the jury to return a verdict finding that the fund in dispute should be applied toward the satisfaction of the mortgage held by Mrs. Glover; and upon such verdict being rendered, judgment was entered in accordance therewith. Mrs. Hawes, trustee, thereupon sued out a bill of exceptions, assigning error upon each of the foregoing rulings.

Hall & Wimberly and J. E. Hall, for plaintiff in error.

Jno. R. L. Smith, for defendant in error.

COBB P.J.

1. Counsel for plaintiff in error do not...