161 Ga. 978 | Ga. | 1925
Mrs. Julia H. Bacon brought an equitable action to the July term, 1922, of Eulton superior court, to recover of Sumner W. Bacon as executor of the will of Gr. M. Bacon, deceased, and Sumner W. Bacon individually, certain property described in her petition, or its value. The defendants filed their answer on July 21, 1922; and on January 26, 1924, the court passed an order referring the case to Edgar Watkins, as auditor, to hear and report on the questions of law and fact set up and contended for by the several parties. The auditor filed a report of his rulings and findings on April 26, 1924, together with his report of all the evidence offered before him. On May 15, 1924, the plaintiff filed her exceptions to the report of the auditor, these exceptions being classified under three heads: (1) Exceptions to rulings on objections to evidence. (2) Exceptions to findings of facts.
In 1876 G. M. Bacon married Julia R. Holcomb, a daughter of Thomas Holcomb, of Savannah. It appears from the record that Mr. Bacon was at the time without financial means, but it does not appear that the bride received a dowry of anj kind or amount. In 1883, after Mr. Bacon had farmed, either as an overseer or tenant, for several years, he went upon what was known as the “Troup Butler Place” containing 1025 acres of land in the 9th district of Mitchell County. The place was then in possession of one Davis, as receiver of Bacon and Welch. On January 25, 1884, Mr. Bacon borrowed $2000 from his father-in-law, Thomas Holcomb, and executed and delivered to him his note for that amount. On the next day, January 26, 1884, Davis, the receiver, in consideration of $2250 made a deed to the Troup Butler place, containing 1025 acres, and embracing certain numbered land lots therein named, to Julia H. Bacon, and the deed was duly recorded. This land appears to have been always returned for taxes by the husband, G. M. Bacon, in the name of Mrs. Bacon and as her property, until and except as she sold portions of it from time to time, and certainly until she transferred the major portion of it to the G. M. Bacon Pecan Company in 1903. In 1903 a charter was granted by the superior court of Mitchell County, incorporating the G. M. Bacon Pecan Company, with a capital stock of $46,000, divided into 1840 shares of the par value of $25 each'. The corporation was organized, and Mrs. Bacon became the purchaser of 1600 shares of the capital stock of the corporation of the par value of $40,000. In consideration of $38,000 worth of the capital stock she conveyed to the corporation, the G. M. Bacon Pecan Company, 719-1/4 acres of the original 1025 acres to which she received the deed in 1884. The remaining $2000 worth of stock was paid for by a lease of another portion of the original tract not included in the tract sold to the pecan company, but which had been planted in pecans. A portion of this outside land was leased for five years and another portion for ten years. Thus, in the organization of the G. M. Bacon Pecan Company, Mrs. Bacon was undoubtedly the owner in her own name of 1600 shares, an overwhelming majority,
In 1909 the G. M. Bacon Pecan Company, in the improvement of its property (anij perhaps on account of delay in returns) had become involved in debt, and its property had been subjected to three mortgages, the amounts not being disclosed, and it became necessary that the proposition be “financed.” Accordingly a charter was applied for and granted by the superior court of Mitchell County, incorporating the G. M. Bacon Pecan Groves, with a capital stock of $200,000. An arrangement was made for the issuance and sale of $100,000 of bonds, and a certain portion of the stock to be issued was set apart as a bonus to be given the purchasers of the bonds. The amount of stock allotted as a bonus does not appear from the record. However, it is undisputed that it was agreed by all of the stockholders of the G. M. Bacon Pecan Company that a certain defined and described portion of the property of the G. M. Bacon Pecan Company should be sold to the new corporation, the G. M. Bacon Pecan Groves, in consideration of each stockholder in the Pecan Company being given one $100 share of stock in the Pecan Groves in exchange for the $25 share of stock held in the Pecan Company, and thereupon the Pecan Company would execute a deed to the Pecan Groves to the realty described in the deed. For some reason' — doubtless by reason of the bonus stock to which we have referred — the shares of stock to be assigned in the Pecan Groves lacked 72 shares of equalling the number of shares in the Pecan Company. However, the Pecan Company, as before stated, had property not embraced in the sale to the Pecan Groves, and Mrs. Bacon agreed to take these assets in lieu of 72 of her shares. The evidence to the effect that this property was worth more than $7200 is undisputed, as is the fact that the G. M. Bacon Pecan Company, after the sale of the major portion of its property to the G. M. Bacon Pecan Groves, continued to do business with the plaintiff, Mrs. Julia H. Bacon, as president and sole owner of its stock. It is in evidence that shortly prior to the organization of the Pecan Groves corporation, and preceding the sale by the Pecan Company of the
The auditor found that there was a settlement between the parties.'
“State of Georgia, Mitchell County: Whereas, upon organization of the G. M. Bacon Pecan Groves, a corporation incorporated under the laws of Georgia, stock subscriptions were made to the capital stock thereof, as follows: Preferred Stock — G. M. Bacon, 500 shares, $50,000; and whereas the following subscriptions were made to the common stock: G. M. Bacon 500 shares, $50,000; Mrs. Julia H. Bacon 500 shares, $50,000; and whereas some of the stock of the said Pecan Groves has been issued, and further stock is to be issued:
“Now, then, the said Julia II. Bacon for herself, and the said G. M. Bacon for himself, each in consideration of one dollar in hand paid by the respective parties named, do hereby request the G. M. Bacon Pecan Groves, the corporation aforesaid, to issue the stock of said company, in the following number of shares, ratifying and confirming those of such shares that have already been issued, as follows, to wit:
G. M. Bacon 10 shares
Mrs. Julia H. Bacon 245 ''
Admx. of Est. D. C. Bacon W. B. Gillican 89 “ 49 “
393 shares
Preferred Stock’
G. M. Bacon r, 501 shares
Mrs. Julia H. Bacon 320 “
Admx. Est. of D. C. Bacon 115 “
W. B. Gillican 63 ''
I. A. Bush & Son 1 share
1000 shares”
Prom this finding it clearly appears that Mrs. Bacon knew she had only 565 shares of stock in the corporation, just as she knew previously that she was receiving a portion of the property of the G. M. Bacon Pecan Company in the place of 72 shares of her stock in the Pecan Groves; but however that may be, from the foregoing finding it definitely appears that Mrs. Bacon requested only 245 shares of common stock to be issued to her instead of 500 shares which had previously been subscribed for in her behalf. This settlement, however, might not by itself be conclusive; but in the 34th finding of fact the auditor found: “Prior to February, 1921, G. M. Bacon, in his own handwriting, made an entry of a settlement between himself and Julia II. Bacon on his old ledger, which entry was by Mr. Mallary, bookkeeper for G. M. Bacon, later and in February, 1921, transferred to the journal, and is as follows: Feb. 1921. G. M. Bacon 21, 2249.35 to Mrs. Julia H. Bacon 26 2249.35. •
As per agreement, G. M. Bacon’s 'Old Ledger, page 98,’ whereby Mrs. Julia H. Bacon was to receive $5000 in cash and $50,000 in 6% bonds of the company to be formed 'succeeding’ G. M. Bacon Pecan Groves, making her total interest $55,000. On account of the failure of the bonds to be issued, by mutual agreement between G. M. Bacon and Mrs. Julia H. Bacon, her interest was changed from $5000 cash and $50,000 in bonds to $5000 cash and interest to the amount of $50,000 in the American Pecan Company’s notes given in settlement for the 'stock’ of G. M. and Julia H. Bacon in
Total Interest $55,000.00
Credited '3/31/19 $51,450.65
Credited 12/2/19 1,300.00
This entry 2,249.35 55,000.00
“This settlement, if valid in law, gave Mrs. Julia H. Bacon more than she would have been entitled to receive from the sale of only the stock standing in her,name.”
After a careful examination of the report of the evidence submitted by the auditor, we are satisfied that the trial judge did not err in approving these findings of fact, and that there was in fact a settlement between the plaintiff and her husband. Was she competent to make the settlement ? While a wife can not sell her property to her husband without an order of the superior court, and while she can recover her property if it be placed by her husband in his name instead of hers, she is in other respects, so far as we are aware, as free to manage her business as a feme sole. Whatever a person may do himself he may authorize an agent to do and do through an agent. It may be stated that generally a husband may contract with his wife. Gray v. Collins, 139 Ga. 776, 780 (78 S. E. 127). In the case of Cain v. Ligon, 71 Ga. 692, 694 (51 Am. R. 281), the court enumerated the cases where the wife is prohibited from acting or contracting, and a contract of agency is not included in the enumeration. The court said: “She is inhibited from entering into any contract of suretyship, or from assuming the debts of her husband, and any sale in extinguishment of his debts is made absolutely void. Code [1882], § 1783, and cases cited in note thereunder. No contract of sale made by a married woman of her separate estate with her husband, or her trustee, is valid, unless allowed by order of the superior court of the county of her domicile.” From the case of Barber v. Barber, 125 Ga. 226 (53 S. E. 1017), it appears that the husband may be the agent of the wife, and that naturally and necessarily she would have a right to a settlement with him. The principles there stated are applicable to the case at bar. In that case the husband had some of the property of the wife and managed it as her agent-. No account was rendered by him to the wife, but after the lapse of several years he delivered up to his wife possession of the part of the prop
Judgment affirmed.