67 Ga. 518 | Ga. | 1881
■ Suit was brought in the statutory form for the recovery of a lot of goods claimed by the plaintiff as having been converted by the defendant. The plaintiff is a married Woman, and the defendant bought the goods from the husband as agent of the wife. A mortgage had been previously given by the husband as agent, and signed also by the wife, to secure two promissory "notes, one for over $800.00 and the other ior $251.00, and when the bill of sale was executed these notes and the mortgage were delivered up to the husband. When the wife heard of the
We cannot say that this charge is error under the plead-' ings in this case. The issue is a naked issue of title to. the goods" and to all the goods. There, is no plea to the etfect that any part of-them was sold to pay the one note, and another part to pay the other note; and if it had been so pleaded, or if the general issue would let in evL dence to that effect, it was not shown, and could not have, been proved, that' such was the sale; for the bill of sale
If the sale were severable under the Code, §2641, then the recovery would be for the goods sold to secure the husband’s debt alone, but it is not devisible under that section which regulates the contract of sale. Whether divisible or not turns on the intention of the parties ; see last clause of same section. It is clear that these parties intended to sell all the goods, and each and every parcel, to pay both notes, the valid and the invalid and illegal note alike. No man can sever one article from the rest as conveyed in consideration of the good note.
We think, therefore, that under the pleadings the verdict could not be otherwise, because, first, Campbell is estopped from denying title to be in the wife. He is both mortgagee and vendee from her agent, acting for her, and these conveyances estop him from denying her title, just as she would be estopped from denying that her agent sold in consideration of these notes. That she could attack the consideration as illegal is a different matter. And this view will dispose of all the rejected testimony in regard to how her husband bought the goods.
Secondly, because the sale is void absolutely in so far as it goes to pay her husband’s debt. Code, §1783.
Thirdly, because the sale is not divisible, and cannot therefore pass title to any of the goods as' sold to pay her own debt.
And fourthly, because whilst under a plea to recoup
Taking the case in its entirety, we see no material error which, under the true law of the case upon the pleadings and facts, could have made'the verdict other than it is. It is therefore affirmed.
Judgment affirmed.