112 Ga. 648 | Ga. | 1901
Lead Opinion
A mortgage fi. fa. in favor of John Flannery & Co. against Henry Coleman was levied upon two parcels of realty therein described, which were claimed by the defendant’s wife, Georgia Coleman. Upon the trial there was a verdict finding the property not subject. Plaintiffs moved for a new trial upon various grounds, which motion being overruled, they excepted. The facts developed
Upon the trial the plaintiffs tendered an equitable issue in which, among other averments, it was alleged that “the title to the property was conveyed by the said Georgia Coleman to Henry Coleman, upon the assumption of an indebtedness of $1,560.88 principal, besides interest, due by said Georgia Coleman to plaintiffs on her three promissory notes [giving the amounts and dates of maturity of the notes], which were given for advancements made upon the faith of the
Judgment affirmed.
Dissenting Opinion
dissenting. 1. When an insolvent debtor, for the purpose of preventing Ms creditors from subjecting Ms property td their debts, causes title to realty purchased with Ms individual means to be made to Ms wife, with the understanding that the title is to remain in her only until he can compromise or settle with his-creditors, and afterwards he does compromise with them, and Ms wife thereupon deeds him the property conveyed to her, she has-no further interest or title, legal or equitable, in the property thus conveyed by her to her husband, and no order of court is necessary to make such conveyance binding upon her. In no legal sense is such property her separate estate within the meaning of the statute wMch declares that a wife can not sell her separate estate to her husband without an order of the superior court.
3. From the record in this case, the above is a fair construction .of the transaction between the parties, and the verdict for the wife as claimant, finding the property not subject, was therefore contrary-to law and the evidence.