The morning news. [volume] (Savannah, Ga.) 1887-1900, 1888-04-17

| "a
Court of Equity; and this was necessary to Ju
risdcton.
For what equitable purpose then does this bill
| exist? IL is in violation of several important
rules of practice and principle in the equity jul
risprudence of the courts of the State of Geor
| gia:
G.l 1t attempts to dispose of controversy
| pending in the court of law.
% 1t attempts to convey, by the execution
or bond and mortgage, the realty of persons
who are not parties to it, and whose interests
are not represented by party
CD 1t is an unlawful Interference with the
| regular administration of the estate in contra
| vention of law and without excuse.
ca 1t is an attempt to authorize the admins
| tratrix to do that which the law declares she
may not do, and which the court had no power
| TO permit or justify. 1t was conceived for an
| illegal purpose and it is like nothing in the
| heavens or the earth or the waters under the
| earth Its consideration was In part q credit
| upon an intangible and vague account against
| her husband, which to this moment, so far as
| the proceedings here indicate, has never been
| ascertained even to the extent of stating its
| items or amount; and the further consideration
| OF release from liability to pay debt, which,
not she, or her husband, but Gazaway B. Lamar
| was bound TO pay, and which, so far as this
| proceeding discloses, he was entirely competent
| TO pay.
The authorization of an administrator to com
| promise contested and doubtful claims has no
such latitude as will justify such a proceeding;
| nor has Court of Equity power to traffic with
| the lands of minor children and dsarrange the
whole process Of administration to accommo-
Date the necessities OF third person, whose only
| connection with the estate was an immense liza
| bility for his breach of warranty.
NO RIGHT TO ACT.
The bill served simply to gloss over this illegal
transaction, and it had no other possible utility
| 1t was perfectly plain that if Mrs. Lamar, as
Administrative, had no right In law to create an
| ncumbrance on the estate the action of the
| court could not give her the right. If she had
the right to incumber the land the action of the
cOul1 xa hal ric sfr ha
| decree then may be considered as eliminated
from the case. 1t is, in the language Of the law
mere nullity." 1t is true, however, that had
| the Superior Court of Chatham county, upon
the averments OF this bill, the jurisdiction
| to grant the decree upon which
plaintiff relies the result of this litigation would
not be materially different. The substantial
question here is, has Gazaway B. Lamar the
| right to recover on the mortgage executed by
| the Administrative, and upon which this suit is
| brought? 1t is certainly matter of grave con-
sequence that he proposed, in his bill, to relieve
| the mortgaged premises from all demands of
his, present and future, If Mrs. Lamar would
| exc ute the mortgage; and that the decree, in
| pursuance of this proposition, distinctly pro
| yided that the land so mortgaged shall be
| hencefOrth entirely released from all liability
| for any debt, which may be hereafter found due
| for any cause existing at or before the date of
the decree, from the estate to the said Gazaway
B. Lamar"
1t is insisted that he has the same right to re-
cover on this mortgage that the Bank of the
so understand tho law. When a mortgaged
debt is paid by one who is bound to pay it, an
assignment of 1t to him upon payment operates
as discharge, and he will not be allowed to
hold 1t as subSlstlng 1ncumbrance. as the pay
ment was in pursuance of his agreement, and
his only. and may be regarded as made with the
mortgagor's money
When Gazaway B. Lamar sold these lands to
his son, this mortgage, which had previously
been made by the vendor, and which had not
been recorded was in the hands of the Bank of
the Republic, of which be, Gazaway B. Lamar,
was the president His deed to his son makes
no mention of the mortgage, but, on the con
trary, as we have seen, was an absolute deed of
warranty. 1t is true that he alleged his son
bought with notice of the mortgage. Conced-
ing this to be true, it none the less the duty
of GaZaway b. Lamar to pay the amount due
upon it. 1t was his debt, and not his sons.
THE DEBT HOLDS.
After the death of his son, Charles A. L, La
| mar. and when the mortgage was levied upon
| the land, it was still the duty of Gazaway B.
Lamar to pay it, or, if not, to respond upon his
| covenant of warranty to the estate. Suppose it
be conceded, however, that he could not pay it,
| and there is no allegation in the bill that would
| justify this conclusion; and that Mrs. Lamar
was compelled to pay 1t, in order to preserve
the corpus of the estate, Gazaway B. Lamar
was still bound to recOmpense her. She did pay
a large part of 1t, by the execution of the new
mortgage to the Bank of the Republic and
when Gazaway Is. Lamar subsequently had that
| mortgage assigned by the bank to him he did
| beginning towards the estate of his son; and
| when, through his administrations he now seeks
to enforce the mortgage against the lands of his
| son, he is met by the conclusive proposition
| that as be was bound to pay 1t in the first in
! stance, when he took an assignment of it to
| himself it was discharged.
1t is insisted that he was party to the last
mortage sued on, and therefore he had the
| right to purchase it. The court will, however
| look clear through the transaction and locate
the original equity, depending upon his liability
| upon the first mortgage, for which this Is
| merely the substitute But it is insisted that G.
| B. Lamar had large claims against the estate of
| c. A. L. Lamar, which amounted to more than
| the liability upon his deed of warranty NliS
may or may not be trle, the court has not been
| informed by any legal evidence upon that sub
| ject. 1t does not appear what was the amount
! of these claims. what was their consideration
| or that they were binding upon the estate
Certainly there was no claim which would au-
| thoriZe court of equity to direct the admins
| tratrix to execute mortgage for the benefit of
| Gazaway B. Lamar; and, if his claims against
the estate are so valid, they must rest upon
| their merit and their dignity. Was this trans
action permissible, the result would be that
| what may be the open accounts of Gazaway b
| Lamar, have been transformed into a mortgage
upon the lands belonging to tue heirs and thus
| the regular process of administration, as we
have seen, totally disarranged for his benefit
and in violation Of law.
THE COURTS CONCLUSION.
| The conclusion of the court is that the Bank
| of the Republic could not have enforced this
| mortgage, signed by the Administrative against
| the lands of the estate, the property Of the
| heirs of c. A l.. Lamar, othor than the admin
| istratrix. That the Administrative. herself
would be personally liable to the bank upon the
mort gage is undeniable. prlma facie case is
| made against her when her mortgage with her
| signature and seal is introduced. This case she
| is now called upon to meet. When Gazaway 3
! Lamar bought the mortgage he was under
| obligations so far as the estate was concerned
and SO far as all the heirs, including the admin
istratriy. were concerned, 10 pay IL off; unless
| he had equities against the estate which would
| obligation. IL does not appear from the
| evidence now before the court that he
had any demand against the heirs
not parties to this bin, which a court
of equity could recognize in the settlement of
| the controversy. 1t is true, however, that the
administrative. without authority as such to do
| So recognized the existence of indefinite claims
| against the estate. She did this irnpliedly in
! her answer. she did this more explicitly in her
! subsequent letters, which are in evidence
| What those claims were,s however, what was
! their consideration or amount the court is
! entirely unadyised That they were not claims
| which would Justify the execution of this mort
gage as affecting the children or their interests
| is undeniabe, and the bill must be dis
| missed to the heirs, to-wt: Eliza
| A. Cunnn CHAM, James c. Cunningham, Caro-
! y. duBignon, Georgia q. Lamar and Mary L.
| Lamar. but the court is Of the opinion that
! sufficient evidence has been addlced TO order
| and require that an account be taken between
! Caroline r. Lamar and her distributive share in
! the estate OF Charles A. l.. Lamar and the es
! tate Of GaZlway g. Lamar In order that IL NAV
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