Byrd v. Vance

158 Ga. 787 | Ga. | 1924

Bussell, C. J.

The exception to the order refusing an interlocutory injunction presents two branches. The plaintiff in error excepts because the court refused to restrain J. J. Vance from aliening or encumbering the property referred to in the statement of facts, and from interfering with the petitioner’s peaceable possession and enjoyment of the premises until .the further order of the court; and also excepts to the latter portion of the order of the chancellor, which required the plaintiff in error to surrender possession of the premises to J. J. Vance, who had purchased the several lots in the city of Tallapoosa set out in the petition.

The exception to the refusal of the court to grant an interlocutory injunction cannot be sustained. The plaintiff entirely failed to show that the paper under which the property was brought to sale was a mere mortgage which had been given in renewal of a previous mortgage for $130, nor did he establish any other fact which affected the validity of the deed purporting to have been executed and delivered to Mrs. Morgan Vance. The deed was not subject to the attack raised by the plaintiff in his petition. The ground upon which the prayer for injunction was predicated in the petition was that the purchase by J. J. Vance was void, because he had bought the property of his wife, Mrs. Morgan Vance, without an order of the superior court authorizing the wife to sell her property to her husband, as provided in the Civil Code, § 3009. The evidence showed that Mrs. Vance was not selling her own property, nor was any of her property purchased by her husband. Under a power of sale Mrs. Vance advertised and sold the property of Zack Byrd as his agent, and it appears that she had full authority to exercise this agency. Under this power of sale the fact that the purchaser ivas her husband would not be affected by the failure to obtain an order of the superior court authorizing the husband to purchase the property of his wife, for no property of the wife was being sold. It might well be said in this case, as in 13 B. C. L. 1276, § 314, that “The reason that the incapacity of a married woman to act for and bind herself does not affect her capacity to execute a power is because in so doing she merely acts as the instrument of the creator or donor of the power from whom, in the eyes of the law, the person in favor of whom the power is executed is deemed to take.” Ilad the petition been based upon the ground that the husband could not purchase at a sale in which his wife was exercising fiduciary duties as the agent of a third person, any more than the wife herself could purchase at her own sale, because, under the ruling in Reed v. Aubrey, 91 Ga. 435 (17 S. E. 1022, 44 Am. St. R. 49), “the twain are one flesh,” the decision of the lower court might have been different. In the brief filed in this court the ruling in the case of Lowery v. Idleson, 117 Ga. 778 (45 S. E. 51), in which the Reed case is cited, was called to the attention of the court, and it was urged before us that the sale was invalid because neither husband nor wife can purchase at a sale which is being conducted under legal authority as agent for another by his or her spouse. Of course, however, this court cannot pass upon a point raised for the first time in this forum. ■ This court being for the correction of errors, it cannot pass upon any question which was not submitted to the trial court. By amendment to the petition, suggesting the invalidity of the sale, the plaintiff in error might have raised the point that the conjugal relationship debarred Yance from buying, because his wife was exercising fiduciary powers for her debtor, and could have had an adjudication on the lines of the Reed and Lowery cases, supra, Moore v. Carey, 116 Ga. 28 (42 S. E. 258), and DeVaughn v. Griffith, 149 Ga. 697 (101 S. E. 794), or may still do so; but the theoretical question raised in the brief was not raised in the petition before the trial judge. Upon the questions presented by the record the trial judge correctly refused an interlocutory injunction, and his judgment as to this must be affirmed.

In concluding the order refusing an interlocutory injunction the court ordered “that unless possession of the premises herein described is delivered to the defendant, J. J. Yance, within ten days from this date, the sheriff of said county is hereby ordered and directed to put the said J. J. Yance in peaceable possession of said premises, removing the plaintiff and his family therefrom.” This adjudication was beyond the power of the court. The theory upon which the court correctly passed upon the injunction — that the court would not interfere with the possession of the premises in the interlocutory proceeding — also forbade interference with this possession in behalf of the defendant, especially because the order was in advance of a trial of the ease, and this portion of the order is nugatory and must be set aside. In.answering the petition of the plaintiff the defendants prayed that an order be granted directing the removal of the plaintiff from the possession of the house and lots and putting the defendant J. J. Yance into possession thereof. The court was not authorized, in advance of the action of a jury upon the facts of the case, and of his own motion to adjudge that either party was entitled to possession in preference to the other. The order was premature.

Judgment in part affirmed and in part reversed.

All the Justices concur.