71 Ga. 692 | Ga. | 1883
The question made by this record is whether a married woman can give to her husband, without the approval and sanction of the chancellor, any portion or all of her separate property, when it is not encumbered with a trust in which remaindermen and others are interested, and whether her deed conveying such property to him is void or merely voidable. The court below decided that a gift, under the circumstances, was void; the propriety of this decision is the point presented for adjudication.
Since 1866, Code, §1754, all the property owned by the wife at the time of her marriage, and all acquired by her during the coverture, remains her separate property, and .is not liable to the debts or contracts of her husband. With this act a new rule of property was introduced with respect to married women, as has been frequently decided by this court, “and a corresponding enlargement of their legal capacity. With reference to her separate estate, a female, married or single, is now on full equality with a
If a gift is synonymous with a sale, then this transacaction falls within these restrictions ; but if it is not, then its validity or invalidity is to be tested by a different principle. A sale is, according to Blackstone (2 Comm., 446), “ a traxxsmutation of property from one man to another, in consideration of soxne price.” By Kent it is defined (2 Comm., 615,11 ed.,) to be “a coxxtract for the transfer of property from oxxe person to another for a valuable consideration.” Bexxjamin (Sales, §1) says, “it may be defined to be a transfer of the absolute or general property in a thing for a price in money.” A valuable consideration, as money or property, is essential to its validity. Ixx this respect it is the very opposite of a gift, which need xxot rest for its support upon any consideration of value, axxd is a mere gratuity, founded oix feelings of benevolence, kindness, charity or love.
Where such transactions take place between persoxxs sustaining certain confidential relations to each other, they are not ipsofaoio void, but may be rendered void at the option of the doixor, if ixxduced by xxxxdue influence or other improper apxxliances or persuasioixs: in short, when they are brought about by anythixxg amounting to constructive fraud, which “consists ixx aixy act of omission or coxxxmission
The court below erred in charging the jury that the deeds from the wife, Emma Cain, to her husband, JohnM. Cain, conveying to him the property in' dispute, were void, without an order of the court, allowing and approving them. We hold that in any event they were only voidable; that two questions should have been submitted to the jury: First,whether the deeds were procured by the exercise of improper influence on the part of the said Cain over his wife, in consequence of the confidential relations existing between them; and secondly, whether more than five years have elapsed from the execution and ' delivery of these conveyances to the bringing of this suit by the representative of the deceased wife; and, in this connection, whether she survived more than this length of time without attempting or making any legal effort to cancel the deeds, and whether she had desired to have them canceled, and was prevented from doing it by the improper persuasion or other influence of her husband.
Judgment reversed.