
    *Amelia Smith, plaintiff in error, vs. John L. Hamilton et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Mortgage — Lien for Amount Advanced. — A gave B an obligation to pay a certain amount of money, and also to assume and discharge the debts owed by B, and by B and A, as contained in a schedule therein referred to, and at the same time executed to B a mortgage to secure him for said certain sum, and also for the payment of said debts, reciting in the mortgage the fact that said obligation was given, and its substance:
    Held, That the lien of said mortgage is good to indemnify B for whatever amount of said debts he may have to pay.
    2. Injunction. — That the wife of A, who sets up a purchase of the mortgaged property from her husband after the execution of the mortgage, and with notice of it, cannot enjoin B from enforcing his rights under the mortgage, on the ground that said debts were not included in the mortgage, or that she had no notice of their amount.
    Injunction. Mortgage. Before Judge Harvey. Floyd Superior Court. January Term, 1872.
    Amelia Smith filed her bill against John L. Hamilton and Levi P. May, sheriff of Floyd county, making, substantially, the following case: On May 27th, 1869, Hamilton and Smith, the husband of complainant, entered into a written contract, by which the former sold to the latter his entire interest in the stock of drugs, etc., in the store of Hamilton & Smith, and in the rights and credits belonging to the same. In consideration of which, Smith agreed to pay to Hamilton $1,100, as follows: $100 00 in cash; $575 44 on or before January 1st next thereafter, and the balance of $425,00 to be canceled by the conveyance by one Doyle of a lot in the city of Dalton to said Hamilton. Smith further assumed the payment of the entire debts and liabilities of the late firm of Hamilton & Turnley, of J. L. Hamilton, as their successor, and of the firm of Hamilton & Smith, as contained in a schedule that day agreed upon; and if the schedule should be subsequently found to be incorrect, a due and proper allowance should be made therefor in a final settlement.
    On thé same day, Smith executed to Hamilton the following mortgage:
    ^“GEORGIA — Floyd County.
    “Know all men by these presents, that whereas, I have this day purchased of Dr. J. L. Plamilton his entire interest in the stock of drugs and medicines and merchandises in store m the city of Rome, añd have given my obligation to pay the balance of the purchase money, being $575 00, by or between this and the first day of January next, according to the terms of a covenant this day made him, to secure said Hamilton in the faithful and just performance of my contract touching the said sum of $575 00, and the payment of the liabilities of the late firm of Hamilton & Turnley, and of said Hamilton, and of the late firm of Hamilton & Smith, in the drug business: I do hereby mortgage to him, the said Hamilton and his assigns, the said interest which 'he has this day conveyed to me, with all the rights and privileges under said mortgage, as now appertain to like conveyances and securities by the laws of this State.
    “In witness whereof I have hereunto set my hand and seal this 27th May, 1869.
    (Signed) “J.' D. SMITH.
    “In presence of:
    “Thomas J. Perry, J. P.”
    On November 15th, 1869, complainant purchased of her husband, J. D. Smith, with notice of the aforesaid mortgage, but not of the above recited contract of sale, the said stock of goods, upon the following térms: complainant was to account to said Smith and his family for $1,000 00, said sum being the exemption of personalty allowed to them by the Ordinary of Clay county, in said stock; also, to pay the balance due on the mortgage to Hamilton. Complainant paid to Smith on the day of the sale to her, $3,000 00 for said goods, and on January 4th, 1870, settled the balance due on the mortgage, to-wit: the $575 00. Notwithstanding these facts, Hamilton has foreclosed said mortgage, alleging to be due thereon $2,120 64 principal, and $100 00 interest, and is about to have the execution based thereon, levied upon said stock of goods. If *complainant were to claim said stock after the levy, she would be unable from poverty to give the necessary bond and security. ‘Hamilton is insolvent and therefore unable to respond to complainant for the damages that will be sustained by her in case a levy is made. Prayer, that LeviP. May, sheriff, and his deputies, be enjoined from levying said mortgage execution, and that if 'the same be already levied, that said levy be directed to be dismissed, unless the plaintiff in execution give bond and security in the sum of $4,000 00, to secure complainant in any damage he may sustain; that the mortgage execution be canceled; that the writ of subpoena may issue.
    The defendants demurred to the bill. The demurrer was sustained and the bill dismissed. Complainant excepted to the aforesaid ruling and assigns error thereon.
    W. D. Eeam, by T. W. Aeexander, for plaintiff in error.
    Smith & Branham, by Underwood & Roweee, for defendant in error.
   Trippe, Judge.

J. D. Smith purchased of Hamilton his interest in a stock of drugs owned by Hamilton & Smith, and gave his obligation to pay Hamilton a certain amount of money, and also to pay certain, debts of Hamilton & Smith, and other debts for which Hamilton was liable. The obligation recited that a schedule of those debts was agreed upon and in Smith’s possession. Smith at the same time executed to Hamilton a mortgage on the interest he purchased, “to secure Hamilton in the faithful and just performance of his contract, touching said sum of $575 00, and the payment of the liabilities of Hamilton & Smith,” etc., referring therein to the obligation above mentioned. ,

Mrs. Smith, th'e wife of J. D. Smith, claims that she .after-wards purchased from her husband the whole stock of drugs; that she had notice of the mortgage, and paid the $575 00, but denies that she had any notice of her husband’s liability *for the payment of the debts of Hamilton & Smith and others, and prays an injunction to restrain Hamilton from levying a ú. fa. sued out in the foreclosure of said mortgage, on the goods mortgaged. She alleges that she cannot file her claim if the levy is made, and give the bond and security required by law.

We think that the specification of the debts or liabilities for which the obligation was given was sufficient, and it was therein stated that they were set forth in a schedule in the possession of the obligor. That bound the obligor, and for a sum certain, or a sum which could, with absolute verity, be made certain. The mortgage was given to secure the performance of the terms of that obligation, stating what those terms were.

In 10 New Hampshire Reports, 210, it was held that where a mortgage is given to secure a particular sum, and also a bond, the condition of which covers all the liabilities of the mortgagor to the mortgagee, the mortgage shall be construed in conformity with the bond. In that case, the Court say, “the bond being made at the same time, and referred to in this manner, may be considered, as between the parties, as if it was part of the condition.”

Here the obligation or bond and the mortgage were executed the same day; the mortgage referred to the obligation and its contents, and was given to secure its performance. The wife of the mortgagor, who sets up a subsequent purchase from her husband, admits notice of the mortgage, but denies that she knew it was for more than a security for $575 00. If she had notice of the mortgage,' it was notice of all its recitals, and of all the debts it was given to secure. It will not do in such a case to permit a husband, by a transfer to his wife, to enable her to set up technicalities whereby the property may be protected from the payment of his liabilities.

Judgment affirmed.  