concurring.
There were two successive partnerships, each of which mortgaged the same property to secure the same debt, a debt of the first partnership. The second mortgage was not given to supersede the first, but was cumulative only. Each partnership consisted of two members, one of whom was common to both firms. This member, on the dissolution of the first firm, bought out his copartner, and, for a time, was sole owner. He then sold a half interest to a third person, by which means the second firm came into existence. Among the partnership assets in both these transactions, was the mortgage property; and the sale, each time, was made subject to the first mortgage. During the continuance of the second partnership the creditor granted an extension of the time of payment, and the second mortgage was executed by that firm as cumulative security. It, moreover, covered some additional property, and stipulated for the payment of counsel fees. Both mortgages were foreclosed, and shortly afterwards, the new partner bought out his copartner, and thus became sole ower of the property, *366taking his copartner’s interest subject to the mortgages. After this, the property was levied upon by virtue of the mortgage fi. fas., and he made certain payments on the mortgage debt, but before discharging it died, leaving the'property under levy, and a balance due on the debt. Instead of proceeding to sell by the sheriff, the creditor took out administration, and as administrator, had the property appraised, inventoried and sold as the property of the decedent’s estate. The proceeds being in hand, the widow claimed, out of the same, the statutory allowance to herself and minor children for year’s support; the administrator, as mortgagee, claimed the whole proceeds, the fund being less than the balance due ou the mortgage debt.
The case was tried in the court below upon an agreed state of facts; and the only question submitted to the judge ivas whether the estate of the deceased comprised the whole value of the property or only the equity of redemption; that is to say, the value, less the unpaid mortgage debt. It was further agreed that should this question be decided in favor of the widow, she should have a verdict, and if against her she should take nothing. The property was under lien, both when the deceased purchased the first half interest, and when he purchased the second half. He took it subject to that lien. The whole legal title vested in him, but vested as it was in the hands of his vendor, incumbered. It is to be presumed that he gave a less price in. consequence of the incumbrance; but whether he did or not, his purchase could not divest the creditor’s right to be paid out of the property or its proceeds. The claim for year’s support will take precedence of any lien with which the deceased owner incumbered his title, but cannot go back and throw of liens which adhered to the title when he acquired it. As against the mortgagee, the deceased had the mere legal title, or what, in Georgia, we loosely term the equity of redemption; and therefore, on the question submitted for decision, the case is with the mortgagee. The decisive fact is that the deceased was not a member of the first partnership by which the original paramount lien was creafed. *367The morality of the rule now declared is, I think, as clear as the rule itself. It is not right, that a man, while living, or his family after his death, should enjoy property free from encumbrance, when his purchase of it was made expressly subject to that encumbrance. Courts are organs of justice not of charity; and widows and orphans, like all other suitors, must endure the rigor of equal and impartial judgment.