Cloud & Shackleford v. Dupree

28 Ga. 170 | Ga. | 1859

By the Court.

Benning, J.,

delivering the opinion.

Was the court below right in receiving the sayings of the defendant in fi. fa., offered as evidence by the claimant ?

We think so. The sayings were against the defendant’s interest, and were uttered before the suit against him was commenced. They, therefore, were admissible both according to principle and to several decisions of this court. 8 Ga., 66; 20 Ga., 220; Ibid, 240.

If the court was right in charging what it did, it was certainly right in refusing to charge what it was requested to charge ; for the two things, the charge and the request, were inconsistent with each other.

The question, then, may be, was the court right in its charge ?

The part of the charge complained of amounted to this: That what is meant in the act of 184T, for recording marriage settlements, by the expression, “bona fide creditor,” is a creditor who “gives credit” to the husband on the faith of the property contained in the marriage settlement. Is this a true exposition of those words? We think it is. The part of the act containing those words is as follows :

“If any such instrument be not recorded within the time prescribed by this act, the same shall not be of any force or effect against a bona fide purchaser without notice, or bona fide creditor without notice, or bona fide surety without notice, who may purchase, or give credit, or become surety, before the actual recording of the same.”— Cobb’s Dig., 180.

The purchaser, creditor, surety, are to be without notice, and also bona fide. They are to be something more, then, than mere real purchasers, creditors, sureties, without notice. They are to be also something, to adapt them to the “bona fide.” What is there, to be that additional thing, except this : that they are to purchase, give credit, become sureties, relying, “bona fide" — “in good faith” — on the property contained in the marriage settlement? We 'see nothing. Therefore, not to hold that this is what was meant by the words bona fide, would seem to be equivalent to rejecting those words, or, at least, equivalent to rendering them inoperative and useless.

And equity and justice favor this construction. The wife herself is a purchaser for a valuable consideration. Marriage is a consideration of the first value. Then she, by her mere marriage, has as high an equity as any creditor, purchaser, or surety-can have. If in addition, it is she that finds the property contained in the settlement, she has an equity far higher than theirs. And in this case the wife did find the property contained in the settlement. Surely creditors of the husband ought not to wish to get that property, unless that property was what they relied on when they gave him the credit.

Judgment affirmed.