53 F.2d 831 | 5th Cir. | 1931
George W. Bagley was adjudged a voluntary bankrupt. His trustee on a plenary suit recovered from him as his wife’s executor a store-house and lot in De Soto, Sumter county, Ga., and the executor appeals. The facts are that prior to January 22, 1903, the store belonged to Mrs. Bagley, who then made a fee-simple warranty deed to her husband, conveying the store and stock of merchandise in it and some farm land, for an expressed consideration of $5,000'. He took possession nnder the deed, and both believed the property to be his by valid conveyance until in 1912 he was refused a loan on the farm land upon the ground that his deed was invalid under a statute, Georgia Civ. Code 1910, § 3000, which requires all sales by a wife to her husband to be approved by an order of the superior court. Mr. and Mrs. Bagley* then joined in a petition to the court, describing, however, only the farm land, and stating that the sale had been freely and fairly made, and praying an approval of it, which was granted on December 12, 1912, and the loan was obtained. Nothing was said in these proceedings about the store. Bagley testifies that after 1912 the store was regarded as belonging to his wife, though he continued to return it for taxation in his name, while her other property was returned in her name, and he continued until bankruptcy to conduct his mercantile business in it, often with her presence and help, and he once mortgaged it in his name. The District Court held that, if Bagley had title in 1912, no prescription had ripened in Mrs. Bagley since, and the correctness of this con
The questions raised involve the construction of Georgia statutes, and decisions elsewhere are of little aid. The first objection is quickly answered. Although the statute, Georgia Civ. Code 1910, § 3009, rendered the unapproved deed of bargain and sale from wife to husband wholly void as title as against her, Fulgham v. Pate, 77 Ga. 454; Webb v. Harris, 124 Ga. 723, 53 S. E. 247; yet it is good as color of title, Floyd v. Ricketson, 129 Ga. 668, 59 S. E. 900; Goss v. Brannon, 167 Ga. 498, 146 S. E. 187. The statute does not intend to wholly prohibit any transfer of property from wife to husband, because she may freely give, it to him, Civ. Code of 1910, § 3010; Cain v. Ligon, 71 Ga. 692, 51 Am. Rep. 281; but it seeks only to insure that she is not worsted in a trade. Prescription does not set up the deed as valid, but by the lapse of time and by peaceable adverse possession creates a new and original title. Civ. Code of 1910, § 4163. The wife’s acquiescence for the prescriptive period is but given the efféet of a gift, which is permitted by law.
As to the second objection, we think that no exception of the case of husband and wife can be read into the statute of prescription. The pertinent portions of the statute, italicized for' emphasis, appear in the Civ. Code of 1910 as follows: Section 4163. “Title by prescription is the right which a possessor acquires to property by reason of the continuance of his possession for a period of time fixed by the laws.” Section 4168. “Actual adverse possession of lands by itself, for twenty years, stall give good title by prescription against everyone, except the State, or persons laboring under the disabilities hereinafter specified.” Section 4169. “Adverse possession of lands, under written evidence of title, for seven years, shall give .a Mice title by prescription.” Section 4173. “No prescription works against the rights of a minor during infancy, of a person imprisoned during his confinement, or of an insane person so long as the insanity continues.” The appellant would add an additional exception of a married woman while living with her husband. In point of fact, the original statute of prescription enacted in the Code of 1863 in substitution of a previous statute of limitations, Pollard v. Tait, 38 Ga. 439, did make an additional exception of “married women during coverture,” and .the exceptions to the running of the general statute of limitations were exactly similar. Code of 1863, §§ 2645, 2867. But that Code in section 1732, now Civ. Code of 1910, § 3007, also provided that “The wife is a femme sole as to her separate estate. unless controlled by the settlement.” There followed the Married Women’s Act of 1866, Civ. Code of 1910, § 2993, whereby all property owned or acquired by her at any time was declared to be her separate estate, free from all marital control, without the necessity of any settlement or trustee, and an act, Acts 1872, p. 39, whereby she was given full right to sue in her own name without joining her husband or appearing by a next friend when suing him, as was previously required by the Code of 1863, § 1723. In consequence, the exceptions in favor of married women were esteemed repealed by implication, and married women being free to sue as touching their property were held bound to sue or become barred by limitation, Perkins v. Compton, 69 Ga. 736, or defeated by prescription, Kile v. Fleming, 78 Ga. 1. Thereupon, when the Code of 1895 was enacted, the exceptions 'touching them were dropped both as to limitation and prescription, Civ. Code of 1895, §§ 3593, 3779, and the omission was repeated in enacting the Code of 1910. These Codes were all enacted as single comprehensive statutes, and are to be construed as such. Central of Georgia R. R. v. State, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518. We must therefore consider that the exception in favor of a married woman was in 18S5 expressly repealed without any saving of her rights against her husband. But it is urged that, while a married woman in Georgia is a femme sole as to her separate property in relation to every one except her husband while living with him, a judicial exception must be created as to him on two grounds: To wit, because of the merger of her civil existence in his, and because of the impolicy of requiring her to sue him. On the first point is quoted the declaration of the Code of 1863, still carried as law in the Civ. Code of 1910, § 2902,: “In this State the husband is the head of the family, and the wife is 'subject to him. Her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her
While some courts, especially courts of equity which are not strictly bound by statutes of limitation, have asserted that it is against public policy to enforce limitation or prescription within the marital relation, the better view is that the courts are not to declare public policy, but only to expound and enforce the statutes. Whether it is better that business between husband and wife should he suffered to remain unsettled until insolvency, a separation, or death supervenes, or whether the interests of the community, the getting at the truth while it is fresh, and the general benefits sought by statutes of repose rather require that no such exception be made, is a question for the Legislature alone. Thompson v. Thompson, 218 U. S. 611, 31 S. Ct. 111, 54 L. Ed. 1186, 30 L. R. A. (K S.) 1153, 21 Ann. Gas. 921. The Georgia court has steadily set itself against adding to the exceptions made by the statutes. Payne v. Ormond, 44 Ga. 514, 527; Jones v. Bivins, 56 Ga. 538; Verdery v. S., F. & W. R. R., 82 Ga. 675, 684, 9 S. E. 1133. Even where a statute of limitation omitted to make any of the usual exceptions, these exceptions were held not to be implied. Weaver v. Davis, 2 Ga. App. 455, 58 S. E. 786. We therefore hold that prescription as to property other than the home may run against a wife in favor of the husband, though living together.
When the two are living together, it will ordinarily be difficult to show that the husband’s possession of any of Ms wife’s property is adverse and exclusive and not in her right, because he so usually manages it for her. The presumption because of the relationship is that he is acting in her right, and clear and explicit proof to the contrary is required with direct notice to her of the adverse holding. 30 C. J. “Husband and Wife,” § 515. Such notice is required by the Georgia statute to render adverse any possession which was originally permissive, Civ. Code of 1910, § 4104, or that of one co-tenant against another, section 3725, and is requisite generally in all eases of confidential relationship. And equally there must be no moral fraud, either in obtaining the color of title or-in the taking of possession. Civ. Code of 1910, §§ 4164, 4169. But in the case at bar all these requirements are fully
Judgment affirmed.
Since this opinion was delivered, attention has been called to the case of Barber v. Barber, 125 Ga. 226, 53 S. E. 1017? which holds that limitation may run between husband and wife.