No. 9392 | Ga. | Mar 17, 1933
1. The petition was defective, as pointed out by special demurrer, because it failed to describe how or in what manner the title to the land was conveyed to plaintiff and her husband J. L. Harris. The special demurrer called for that information, which was pertinent to the issue, in order to determine whether the plaintiff had record title to any part of the land or that record title was in her husband J. L. Harris.
2. “Where a husband and wife are in possession of land and the record title thereto is in the husband, who borrows money from another and executes his deed to such land to the lender to secure the money so borrowed, the title of such lender is superior to the equitable title of the wife, of which the lender had no notice, growing out of the fact that the wife’s money had paid for the land.” Ryals v. Lindsay, 176 Ga. 7 (167 S.E. 284" date_filed="1932-11-16" court="Ga." case_name="Ryals v. Lindsay">167 S. E. 284), and the distinction shown between the cases cited and Walker v. Neil, 117 Ga. 733 (10) (45 S.E. 387" date_filed="1903-08-11" court="Ga." case_name="Paul v. Thompson">45 S. E. 387), and Garbutt v. Mayo, 128 Ga. 269 (57 S.E. 495" date_filed="1907-05-15" court="Ga." case_name="Garbutt v. Mayo">57 S. E. 495, 13 L. R. A. (N. S.) 58); Civil Code (1910), § 4528.
3. The court erred in overruling the special demurrers directed to the portions of the petition alleging that petitioner considered that she owned an interest in the land by reason of the record of the written instrument entered into between herself and W. A. & J. Z. Carter, and that the record of such instrument constituted notice of the interest in the land claimed by her. The record of the 'mortgage made by Mrs. Harris to W. A. & J. Z. Carter, upon property separate and distinct from the land of J. L. Harris herein involved, would not constitute constructive notice of any claim of the mortgagor to such separate land with title in J. L. Harris.
4. Because of the error in overruling the demurrers general and special, all subsequent proceedings were nugatory.
Judgment reversed.