Colquitt & Baggs v. Tarver , 45 Ga. 631 ( 1872 )

Warner, Chief Justice.

This is a bill filed by the complainant against the defendants, praying for an injunction to restrain the foreclosure and sale of certain described property which had been mortgaged to the defendants by William B. Tarver and Benjamin M. Tarver, the sons of complainant. The Court granted the injunction, to which the defendants excepted. The complainant alleges in her bill that she is the widow of H. H. Tarver, deceased; that by his will the property embraced in the mortgages, or a considerable portion thereof, was charged by the will of her late husband with her support and mainteance during her natural life or widowhood, in lieu of dower out of his real estate. The prayer of the bill is, that the amount to which she may be entitled for her support and maintenance shall be ascertained, and be first paid to her out of the mortgaged property, as constituting a prior lien or charge thereon.

There is no good legal or equitable ground shown by the complainant’s bill why the mortgages should not be foreclosed, as between the mortgagors and mortgagees; the foreclosure of the mortgages as to the debts due by the mortgagors to the mortgagees will not in any manner affect the complainant’s rights to her support out of the mortgaged property, provided the same is not sold under the judgment of foreclosure; in that event, her rights might be complicated. In our judgment the codicil to the testator’s will does not adeem or revoke the first clause in his will which charges his estate with the support and maintenance of the complainant during her natural life or widowhood, in lieu of dower, and she is entitled to have the amount ascertained and decreed to her, to which she may be entitled out of the mortgaged property which was owned,by the testator at the time of his death, or which has since been purchased with the trust funds arising from the sale of the property charged with her support, with notice to the mortgagees, that it was so purchased with the trust funds arising from the sale of said property. The record of the probate of the will of the testator was notice to the mortgagees, that the property specified therein was charged with her support and maintenance, but would not be notice as to other property purchased since the testator’s death with trust funds arising from the sale of the encumbered property. In view of the facts of this case, we shall direct that the injunction beso modified as to allow the mortgagees to foreclose their mortgages against the mortgagors, but restrain them from selling the mortgaged property described in the testator’s will, and so much thereof as was purchased with the trust funds arising from the sale of the property charged with the complainant’s support, if the complainant shall allege in her bill that the mortgagees had notice that it was so purchased with the trust funds at or before the date of their mortgages, excepting the “ Frederick place,” under their judgment of foreclosure, until the complainant shall first ascertain by a decree of the Court on the hearing of her bill, what amount she is entitled to for her support and maintenance out of the mortgaged property.

Let the judgment of the Court below be affirmed with instructions.