98 Ga. 669 | Ga. | 1896
An execution in favor of C. H. Stewart against N. Bell, based on a judgment of October 6, 1893, was levied upon certain land, which was claimed by the wife of Bell. There was a verdict finding the property subject, and the claimant made a motion for a new trial, which was overruled, and she excepted.
It appears from the evidence, that the father of the claimant gave her, in 1874, $200 to be invested in the land in question, and that she turned over the money to her husband, the defendant, for that purpose. The husband paid the $200 as part of the purchase money of the land, and afterwards paid the remainder with his own money and took a deed from the vendor conveying the land to himself. When the husband received the $200 from the wife, it was with the understanding that when the land should be fully paid for, she was to' have a deed to her “pro rata part of the land.” Subsequently the husband became indebted to the' firm of W. J. Stewart & Brother, for goods purchased from them, and gave them his promissory note for the amount-due, and it is upon this note that the judgment in question is founded. The wife did not know at the time the deed to her husband was made that the title had been conveyed to the husband alone, and as soon as she learned of it, she insisted that he should make a deed to her of her pro rata part of the land, according to the understanding originally had, or else repay her the $200 she had paid on the land, together with interest thereon. H© did not repay her the money, or any part of it, but finally made a deed to her of what remained of the land, after he had sold from the original tract a quantity amounting to more in value than.
Undoubtedly the wife was the owner of an equitable undivided interest in the land, and it was proper and lawful for the husband to convey to her a portion of the land, not greater in value than the amount of her money which went, into the purchase. Brooks v. Fowler, 82 Ga. 329; Dodd v. Bond, 88 Ga. 355. The judgment against the husband not having been obtained until after the land had been conveyed to her, her title, if the conveyance was made in good faith, was superior to the judgment, unless there was conduct on her part amounting to an estoppel; that is to say, unless her conduct had been such as to mislead the creditor and cause him to extend the credit to the husband upon the faith of the latter’s apparent ownership of the property. In no other way could an extension of credit upon the faith of property which did not in fact belong to the debtor, give-the creditor any right to subject it, as against the real owner, to the payment of the debt. In the cases relied on by counsel for the defendant in error, and in all others in which this court has held that a creditor could subject to a general judgment against the debtor, as against the claim of an equitable owner, property which at the time the credit was extended was apparently the property. of the-
In view of tbe evidence and tbe error above mentioned, we think a new trial should be granted.
Judgment reversed.