138 Ga. 584 | Ga. | 1912
According to the case as made by the plaintiff, the following facts appear: Jesse Darsey died, leaving certain real estate. On July 1, 1865, there was an agreed division or partition among his heirs. One of these was Jesse E. Darsey; and another was his sister, the present plaintiff, Lizzie Darsey, the wife of John Darsey. Deeds were made by the respective tenants in common, for the purpose of carrying into effect the partition thus made. As to the share which fell to plaintiff, the other tenants in common made a deed to John Darsey, and he and the plaintiff went into possession of the land so conveyed, and remained in possession until December 1, 1865. This, under the law as existing prior to the act of 1866 (Acts 1866, p. 146), known as the married -woman’s act, operated to put the title to the share which fell to the plaintiff into her husband, and it became his absolutely by virtue of Ms marital rights and of such conveyance and dominion. Code of 1863, § 1701-2; Arnold v. Limeburger, 122 Ga. 72 (49 S. E. 812). The share which fell to Jesse E. Darsey included two lots in Mitchell county, and lot 26 in Decatur county, the lot now in dispute. A deed was made to him, which was signed by John Darsey and Eobert Daniel, the husbands of the other two tenants in common. According to the- plaintiff’s allegations and proof, on the day when the partition was made a parol agreement was made with her brother, Jesse E. Darsey, by which there was to be an “ exchange of shares,” so that the share which was allotted to the plaintiff and which passed to her husband, as above stated, should go to Jesse E. Darsey, and the part which was allotted to him and conveyed to him, as above stated, should be transferred to plaintiff. After the marital rights of John Darsey had fully attached to the share allotted to plaintiff, she had no interest whatever in it. The plaintiff contends that this share was delivered to her brother, Jesse E. Darsey, in lieu of the share allotted to him in the division. Her husband was present, and either made the trade or certainly took part in making it; so that according to her own showing it was in law an exchange between her husband and her brother, whether she took part in the negotiations or not. No trust was shown and no creation of a separate estate. This would not serve to vest any title in her to that which was exchanged by her
Under the views above expressed, had the evidence objected to by plaintiff been excluded, or that which was offered by her and excluded been admitted, the result would not have been affected.
Judgment affirmed.