133 Ga. 160 | Ga. | 1909
This suit was brought by Mrs. Louisa A. Sullivan, in Februar}7, 1905, against Allan Bond, to recover a certain tract of land -and the improvements thereon, in the City of Savannah, Georgia. In her petition the plaintiff set up a legal title to the premises, claiming under deed from George W. Anderson Jr., dated July 7, 1883, and recorded August 80 of the same year. The defendant answered, denying the plaintiff’s title, and claiming title in himself under a deed from plaintiff to John F. Harrison, dated January 7, 1897, duly recorded, and under a deed from Harrison to defendant, dated May 16, 1900, and recorded May 9, 1901. Plaintiff introduced evidence for the purpose of showing that, under a scheme participated in by Harrison and defendant, she had been induced to deed the property to Harrison in 1897 in order to pay certain of her husband’s debts, particularly his indebtedness to the Southeastern Plaster Co., a corporation of which Bond was a majority stockholder and Harrison an officer. Bond, the defendant, and Harrison, the grantee in the deed from plaintiff, testified that Harrison was the bona fide purchaser from Mrs. Sullivan, and that neither of them participated in any such
If the deed in question in this case had been executed by the wife upon the consideration that the grantee should discharge a valid encumbrance upon the property conveyed, and the latter actually discharged such encumbrance, the conveyance might be upheld as valid. But if the discharge of the encumbrances upon the property by the vendee was only a part of the consideration, and the real object of the conveyance was to appropriate the value of the property conveyed, in excess of the amount represented in the encumbrances discharged, to the extinguishment of the debt of the husband actually existing at the time of the conveyance or in ■contemplation at that time, while a part of the consideration would be valid, the other would be illegal, and the deed, being one entire transaction, “can not be upheld, because of the impossibility of separating that which is legal from that which is illegal. It is not the case of a mortgage given to secure several debts, some of which are legal and some illegal, and in which that which is legal may be cut off from that which is illegal, but it is a case in which the whole transaction is so infected with the virus of illegality that there is no possibility of upholding the deed'executed in pursuance of it as a conveyance of title, and the most that can be done is to award, as was done in this case, that in so far as the plaintiff has extinguished that portion of the debt legally due by the wife, it be made a charge against her estate.” Mickleberry v. O’Neal, 98 Ga. 43 (25 S. E. 935).
Judgment reversed.