Boone v. TaylorBoone v. Taylor
- Reporters:
- , ,
- Before:
- Bell
Mrs. Jeanette Boone filed a suit in the superior court of Chatham County against her husband G-. A. Boone and C. L. Taylor, residents of that county, to cancel a deed made by thе former to the latter, -which purported to convey a described tract of land situated in the City of Savannah. The petition alleged that the plaintiff was married to Gr. A. Boone in 1911, and separated from him on July 15, 1935. The deed, whiсh was executed December 30, 1935, was made with the express intent and purpose of defeating the plaintiff’s сlaim for alimony, and “of protecting said propеrty from any alimony judgment of petitioner.” It was made fraudulently and without valuable consideration, and Boone, thе grantor, has no other property out of which the рlaintiff could realize a judgment for alimony. Boone is without the jurisdiction of this State, and service can not be mаde upon him for the purpose of filing a proceeding for alimony and support. The plaintiff is the mother of six minor children, “the issue of said marriage,” who are living with petitioner at the home located on the property in question. The defendant Taylor has given notice thаt he will evict the plaintiff unless she vacates the premises, and he is now preparing to institute proceеdings for that purpose. The prayers were: (a) “That the sale or purported sale be cancellеd and set aside;” (b) that the defendants be restrained and еnjoined from selling or encumbering the property; (c) that the land be decreed to be the property оf the defendant Boone; (d) and for process. Taylоr, who alone was served, filed a general demurrer, which the court sustained upon the ground that no action for divorce or alimony was pending. The plaintiff excеpted.
Properly construed, the petition shows upоn its face that the plaintiff has not obtained a judgment for alimony, and that no separate action for аlimony is pending; nor does the petition itself embrace an action therefor. The suit is for cancellatiоn and injunction, and nothing more. The plaintiff’s right to injunction and сancellation, or either, is dependent upon hеr right to a judgment for alimony. Parker v. Parker, 148 Ga. 196 (4-a) (96 S. E. 211). Whether under the other facts оf the case she might have sued to have the proрerty seized and appropriated to the payment of alimony, despite the fact that the husband is without the jurisdiction of the court and can not be served (Forrester v. Forrester, *435155 Ga. 722, 118 S. E. 373); Donalson v. Bridges, 162 Ga. 502, 134 S. E. 302; Wood v. Wood, 166 Ga. 519 (3), 143 S. E. 770), the рetition does not proceed upon this theory. Nоr does it otherwise state a cause of action, since it asserts no claim for alimony, is not based upоn an existing judgment for such, and shows that no independent action therefor is pending. Upon the facts alleged, without more, the plaintiff was not entitled to the relief of cancellation or injunction, and the court did not err in sustaining the general demurrer. Gibbs v. Harrelson, 147 Ga. 404 (94 S. E. 235); Sorrells v. Sorrells, 162 Ga. 734 (134 S. E. 767); Arteaga v. Arteaga, 169 Ga. 595 (151 S. E. 5); and see especially Spinks v. LaGrange Banking & Trust Co., 160 Ga. 705, 711 (129 S. E. 31). Judgment affirmed.
All the Justices concur.