concurring.
Henry H. Cole, deceased, in his life time, purchased of the plaintiff in error half of lot No. 7 in square 77 in Macon, containing one-fourth of an acre, and received a deed conveying the same to him on the eleventh day of December, 1854. At the time of the purchase the lot was under mortgage to the Macon Building and Loan Association, for money borrowed from the association by the plaintiff in error. Cole agreed that on receiving the title, as a part of the consideration of purchase, to substitute his mortgage on the same property for that of plaintiff in error to the association. On the day after he received the above deed of conveyance, he executed a mortgage thereon to the said association, agreeably to his contract, and he became a debtor thereby to that amount to the association. After these things were fully arranged and the plaintiff in error had been released by the Macon Building and Loan Association, Cole died, and his widow applied to the Ordinary for a years’ support and maintenance for herself and children. The Ordinary appointed five appraisers under the Act of 1856, to assess the sum necessary for their support and maintenance for twelve months. They assessed the sum of $650, and finding that there was no property belonging to the estate except the lot and two shares in the association, and furniture of little value, they set apart to her and the children the lot and improvements, on her paying to the mortgagee the difference between their unencumbered value and the same assessed. *209It is not pretended that the assessment is unreasonable or excessive. In fact, there was no controversy upon that point. But it is insisted, that by the contract between Elfe and Cole, the legal estate to the lot never so vested in the latter as to entitle his widow to an allowance out of it under the application made by her; that as soon as the title vested in him it passed out of him, in equity, by virtue of the contract, although the mortgage was not executed, in fact, until the day after the conveyance to him by Elfe: and in support of the position the case of Scott, Carhart & Co. vs. Warren & Spicer, 21 Ga. Rep. 408 and other cases, are referred to. It is further insisted that, independent of the special agreement Cole made with Elfe, he was bound to extinguish the lien which existed on the property at the time of the purchase, before he could acquire such a property in the lot as would admit of support and maintenance to be allowed to the widow out of it.
When Elfe purchased the property from Freeman & Roberts, the title passed from them. There was no lien held by them on the property for the purchase money, and they must have executed to him a conveyance before he could mortgage it to the association. This mortgage was to secure the payment of borrowed money. When he sold the lot to Cole, it was a matter of agreement that Cole should mortgage the property to the association, and, in that manner, obtain his release from that liability. He conveyed to Cole. The title was thus vested in him. According to his contract he executed a mortgage to the association, and Elfe was released. What did this arrangement accomplish? Cole became the debtor to the association in the place of Elfe, but he was no purchaser from the association. In regard to the widow’s and childrens’ rights, the association substituted the possible claim of Cole’s widow and children for that of Elfe’s widow and children. It substituted the risk of .Elfe’s life for that of Cole, and also of the amount of the *210allowance to which the wife and children of one or other of these mortgagors wo uld be entitled on his death. If the property had remained with Elfe, and he had died, it might have taken all for the twelve month’s support and maintenance of his wife and children. The right of the widow and children is superior to the debts, dues or obligations of the deceased. Cobb 296.
It is true, as contended for by counsel for the plaintiff in error, that either Cole or Elfo was obliged to extinguish the lieu on the property before Cole could get a good title. He did extinguish it, but gave another. He converted Elfe’s debt into his own, and substituted his lien for Elfe’s. If the lien had remained, binding the property for Elfe’s debt, the enforcement of it would have defeated any title derived from Elfe of junior date to the lien, and with the title, all rights depending on it must have failed also.
It follows that, if the award of the appraisers vested the title in the widow and children upon the payment of the money, and the money was tendered and refused, the complainants are entitled to a decree for the rent upon the payment of the money awarded to the association. The jury have decreed the payment of the money by the complainants, and have decreed to them the rents. The verdict is for a sum proven by two witnesses. I am of opinion that the judgment of the Court below ought to be affirmed.