Kinnebrew v. McWhorter , 61 Ga. 33 ( 1878 )

Warner, Chief Justice.

It appears from the record and bill of exceptions in this case, that the complainant filed her bill against McWhorter et al., in which she claimed, amongst other things, the right of dower in certain described lands as the widow of her deceased husband. It also appears that pending the suit the complainant entered into a written agreement with the defendants to settle the same. The complainant’s attorney notified the parties before the settlement was made, that unless his fee of fifty dollars was paid, that the case would be prosecuted to trial so far as the claim of the right of dower was concerned. When the case was called for trial, a motion was made to dismiss the bill on the ground that it had been settled, and on the further ground that there was no equity in complainant’s bill. The court sustained the motion and dismissed it; whereupon the complainant’s counsel excepted.

If the deed from the complainant’s husband to McWhorter in 1869, was an absolute conveyance of the land to him, then the complainant was not entitled to dower in it; but if the deed was executed merely as a security for money borrowed, as the complainant alleges it was, then the complainant was not entitled to her dower in the land until she had paid, or offered to pay, the amount of the principal borrowed, with the lawful interest due thereon, which she has not done nor offered to do. Lackey vs. Bostwick, 54 Ga., 45. The complainant, therefore, was not entitled to dower in the land, according to the allegations in her bill, and her attorney, who claims to prosecute the case for his fees, cannot be in any better condition to obtain a decree in her name therefor than his client. There was no error in dismissing the complainant’s bill for want of equity.

2. As to the time of making the motion to dismiss the bill, the rule, as recognized by the decisions of this court, appears to be, that if it is apparent on tbe face of tbe complainant’s bill, that he is not entitled to the relief which he seeks, neither in a court of law nor in a court of equity, then his bill will be dismissed at the hearing of the cause, but if the objection is that the court of equity has not jurisdiction of the case, because the complainant has an ample and adequate remedy at law, a motion to dismiss the hill at the hearing upon that ground comes too late. The objection upon that ground should be made at the first term of the court by demurrer; that is to say, when the objection is to the forum in which the suit is instituted.

Let the judgment of the court below be affirmed.