Miller v. McDonald , 72 Ga. 20 ( 1883 )

Jackson, Chief Justice.

The plaintiff in error filed a bill to enjoin McDonald, one of the defendants, from selling under his mortgage on the property of Holloway, the other defendant, on the ground that the complainant held title to a portion of the property mortgaged, and on the further ground, by amendment, that Holloway was dead, and thereby the power to sell under the mortgage was revoked. Holloway, before his death, set up in his answer certain allegations of fraud in the procurement of his deed against complainant, and prayed an injunction against him from interference with His, Holloway’s, property.

The record nowhere discloses the fact that any party had been made, either executor or administrator, to repre • sent Holloway, though by order of court the amendment was made alleging his death and the legal consequence thereof — the revocation of the power to sell. Yet the chancellor granted the prayer of Holloway to restrain complainant from all interference with thepropertyj when he was dead, and no parties made. .

1. Of course this was error, for the reason of want of parties, however little merit there was in complainant’s case, and however just the judgment of the chancellor may otherwise have been.

2. The chancellor also denied the prayer of the complainant to restrain McDonald from selling under the power in the mortgage after the amendment suggesting Holloway’s death. That death revoked the power to sell under the ruling by this court in the case of Lathrop & Co. vs. Brown, executor, 65 Ga., 312.

But that ruling goes further, and expressly denies that a year’s support of the family of the decedent would be preferred to the mortgage creditor, as also would the widow’s right to dower. Hence the necessity of making the representative of Holloway’s estate a party, as well as the widow of Holloway.

The judgment is therefore reversed, and it is ordered that the case be remanded, with directions that Holloway’s representative and his widow be made parties, and that McDonald, having been drawn into equity, may proceed by decree to foreclose his mortgage, unless the representative of Holloway and his widow set up adverse claims which absorb the entire estate, and unless the complainant be able to show clear title, unaffected with fraudulent procurement thereof, to a portion of the land; that all parties litigate inter sese their respective claims, and be enjoined from altering the present status of the property and estate of the decedent, Holloway, until the final decree thereon.

And in- order to facilitate the final settlement of the issues which may be made, this court holds and expresses its opinion that, if dower and a year’s support be claimed by the widow and family, they will be preferred to the mortgage creditor, and if the complainant’s deed was procured by false and fraudulent representations about his book and its value, and the statement that he had a copyright thereto when he has none, and thus cheated and defrauded the decedent, then he had no title at all, and can interfere neither with McDonald nor the representative of Holloway, his widow and the family.

Judgment reversed.