Booker v. Worrill

55 Ga. 332 | Ga. | 1875

Jacicson, Judge.

E. H. Worrill obtained'judgment against D. L. Booker and Milo Booker, on the 31st of May, 1872. Execution was issued thereon and levied upon a certain lot of land in Columbus as the property of D. L. Booker, which was claimed by Elizabeth Booker, his wife. On the trial of the claim, plaintiff showed his fi. fa. and possession in defendant. Mrs.' Booker showed a deed from her husband for value, and proved by him that he was indebted to her $6,000 00 for rents of lands which he had given her several years before, and that this deed was made to her in consideration of this indebtedness. The deed was dated some two weeks before the judgment. It also appeared from the testimony of defendant in fi. fa. that he had executed a mortgage on this land, and tried to raise money to pay plaintiff and failed ; that he offered the mortgage twice to plaintiff, who declined it; that never having delivered it or realized anything on it, he canceled it and sold his wife the entire lot free from any incumbrance. The jury found the land subject, under the charge of the court, and two errors are complained of in the charge.

1. That the court erred in charging that if the wife owning a separate estate allows her husband to use the rents and' profits, such use does not create a debt from the husband to the wife. We think that the court erred in this charge. The statute of 1866 has made a great change in the law of this state in regard to the marriage relation so far as respects property. The wife, as to her separate estate, is a feme sole to all intents and purposes so far as that estate is concerned; and her husband may become indebted to her for the incomes arising therefrom, if he uses and spends such income as his own and acknowledges the indebtedness to his wife, and the transaction is bona fide. This principle was ruled by this court during the present term in Humphrey vs. Copeland; and that the wife might owe the husband for services as clerk and she be garnished therefor, was ruled. It is, therefore, no longer an open question here.

2. The court charged that a deed made by .the husband to the wife directly, without the intervention of a trustee, was void at common law, and that our statutes had not changed the common law except in provisions for carrying out marriage settlements, and that the deed from D. L. Booker to his wife, Elizabeth, was void for this reason. We think our statutes have altered the common law, and that a deed may be made directly from husband to wife. Of course,'such a deed will be closely scanned, as has been ruled by this court, and if fraudulent, will be set aside as against the rights of creditors, but if made bona fide and to pay a subsisting debt from husband to wife, the deed will be.held good ; and whether fraudulent or not, is a question for the jury: Code, section 1783.

3. Under these charges, the jury hdd no option. They were constrained to find the property subject, and the question of fraud or no fraud was not submitted to them. We think that the true issue, and reverse the judgment and order anew trial to determine that issue.

Judgment reversed.