54 S.E.2d 329 | Ga. Ct. App. | 1949
1. As the case is being reversed on the general grounds, it is unnecessary for this court to pass on special grounds 1 and 2 of the amended motion for new trial, because the errors complained of will not likely reoccur on the retrial of the case.
2. Special grounds 3 and 4 are not complete within themselves and will not be considered.
3. The evidence demanded a verdict for the plaintiff for a large number of the articles sued for, and therefore the court erred in overruling the plaintiff's motion for a new trial.
3. The plaintiff contends that title to the property in question was acquired by her in the following ways: (1) as gifts to her from the defendant, (2) property purchased with her own money, (3) gifts from third parties, (4) property acquired prior to their marriage, (5) property purchased jointly by the plaintiff and the defendant, (6) property given to the plaintiff and the defendant jointly. Of these six means of acquiring title, the plaintiff, upon proper proof, would be entitled to recover in a trover action in all except the sixth. As a general rule, trover will not lie in favor of a tenant in common to recover property from his cotenant or a joint owner. Hall v. Page,
It is settled by statute that property acquired or purchased by the wife during coverture with her own money becomes her separate property; also all property acquired prior to her marriage and property given to her individually during coverture becomes part of her separate estate. "All the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife; and all property given to, inherited, or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband." Code, § 53-502.
The defendant contends that the property in question belongs to him because, (1) the articles sued for were indirectly or directly purchased with his money, (2) he has given plaintiff property equal in value to the property sued for, (3) plaintiff "agreed not to take anything from the house which was essential or necessary in the keeping of the home." The defendant testified: "I claim this property that is listed here because it was bought with my money either directly or indirectly and I paid for it. This checking account here will show that my money was spent, and I also claim this property because I have given her articles that will equal in value to the property she now seeks to take from me. I claim this property on further grounds that she agreed not to take anything from the house that was essential or necessary in the keeping of the home." None of these defenses is good in law. The first two require no discussion. The so-called agreement, defendant's contention No. 3, was not sufficient to convey title originally in the plaintiff and vest it in the defendant. Assuming for the sake of argument that the so-called contract was definite and certain as to the description of the property, we are still of the opinion that the agreement was unenforceable because it is unilateral, since the defendant made no undertaking whatever as a consideration. The alleged contract simply states what *481 the plaintiff will do and does not say what the defendant will do. The undisputed evidence showed that certain property in question was owned individually by the plaintiff, such as property acquired prior to her marriage and gifts from third parties. Since this so-called property division agreement is invalid, that property still belongs to the plaintiff's separate estate, and the evidence demanded a verdict for the plaintiff for at least a large number of articles sued for.
The court erred in overruling the plaintiff's motion for a new trial.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.