157 Ga. 618 | Ga. | 1924
Lead Opinion
A fi. fa. based on a judgment in favor of J. F. Flournoy against G. W. Jenkins was levied on an undivided half interest in a described tract of land, and separately on described personalty. Mrs. Susie Jenkins, the wife of the defendant in fi. fa., interposed a claim to all the property. When the case came on for trial at a subsequent term, an equitable amendment was allowed in aid of the claim. The amendment alleged equitable title in the wife to all the property levied upon, and other described realty, based on a purchase by the husband with the money of the wife and the taking of title in the name of the husband without the knowledge or consent of the wife. It was also alleged that after the plaintiff’s judgment was obtained, the claimant sued her husband, and thereupon he executed a deed to her conveying the land levied upon; and that the plaintiff in fi. fa. knew or ought to have known of the claimant’s equitable title, and consequently could not subject it to payment of his debts. It was prayed that the defendant in fi. fa. be made a party, and that all the property be decreed to be the individual property of the wife, and not subject to the husband’s debts. The defendant in fi. fa. was duly made a party, and filed an answer admitting all the allegations of the amendment. However, on the trial which immediately ensued, the judge “directed that the case proceed only as to the real property, . . refusing to hear and adjudicate the issue’ as to the personal property.” The claimant introduced evidence to the following effect. Claimant received stated sums of money from the estate of her father and by gift from her mother, which she delivered to her husband to be invested in the property, the title to be taken in her name. The money was invested, but the husband took title in his own name without claimant’s knowledge or consent. Relatively to the land levied on, the claimant’s evidence was substantially as follows: The husband and J. B. Cousins purchased it jointly from Mrs. R. A. Hill, paying -a stated amount in cash and agreeing to pay the balance at intervals in the future. One hundred and twenty-five dollars, being one half of the initial payment, was paid by claimant’s husband from money of claimant, and he gave his individual notes for his half of the deferred payments, which aggregated $875. The notes were all paid from rents from the land. The deed executed by the vendor to claimant’s husband and J. B. Cousins bears date January 13, 1916, and was recorded two days
The judgment on which was based the fi. fa. that was levied on the land was obtained on January 21, 1921, and shortly thereafter the claimant sued her husband for the property; whereupon the husband, on June 25, 1921, executed a deed conveying the land in dispute to the claimant. The deed, after describing the land, contained the following clause: “This deed is made in compliance with a contract between grantor and grantee, made in 1916, under which contract grantee Mrs. Susie Jenkins out of her own individual and separate estate furnished the money that purchased said property, with the understanding with grantor that the deeds were to be made to the grantee Mrs. Susie Jenkins; and grantor,- contrary to this agreement and the directions of grantee, had the same made to himself; and on being sued by the grantee to have the said grantor to make title, the grantor now comes and makes this deed
The jury returned a verdict finding the property subject. The claimant made a motion for a new trial, in which, in addition to the usual general grounds, it was alleged that the judge erred in restricting the trial to the issues relating to the land; also that the judge erred in withholding from the jury certain testimony of movant and of her husband, as to delivery by the former to the latter of her individual money for investment in the name of the former, and as to the source from which she derived the money; also certain testimony of the wife as to knowledge of the neighbors that claimant received money from the estates of her parents; and finally that the judge erred in charging the jury as will presently more fully appear. The judge overruled the motion for new trial, and in the order stated: “ Counsel for plaintiff in fi. fa. having proposed to dismiss the levy as to the personalty as set out in the 7th ground of amended motion, it is therefore ordered and adjudged that, if counsel for plaintiff in fi. fa. will dismiss- the levy as to said personalty within 10 days from this date, said motion be and the same is overruled as of date of said dismissal, and a new trial denied. Should plaintiff in fi. fa. fail or refuse to dismiss said levy as to said personalty within 10 days, then said motion for new trial shall be sustained, and a new trial granted as of the date of December 21st, 1922.” On the day this order was granted the plaintiff in fi. fa. dismissed his levy on the personalty. The claimant excepted.
The court at the beginning of the trial “directed that the
We think the trial judge erred in the exclusion of the testimony to which exception is taken in the third, fourth, and sixth grounds of the motion, by reason of the previous error of which complaint is made in the seventh ground. After having allowed the amendment making G-. W. Jenkins a party in the claim case, it was certainly error to circumscribe the rights of the claimant, who had filed an equitable claim (and had become a quasi petitioner in equity) as to any of the matters pending before the court. A claim is in its nature an equitable proceeding; and certainly since the passage of the uniform-procedure act, when a claim has been interposed, the rules of equity must be followed. No objection seems to have been interposed by the plaintiff in fi. fa. to Gr. W. Jenkins being made a party, nor any objection offered to the form or substance of the equitable amendment. With the amendment before the court, all questions as to the ownership of the property
The exception to the instruction of the judge which is contained in the first ground of the motion is sustained. The language used is the precise verbiage of. § 3740 of the Civil Code of 1910, but it was inapplicable to the case on trial. While it is true that “as between husband and wife, . . payment of purchase-money by one, and causing the conveyance to be made to the other, will be presumed to be a gift,” this was not that kind of a case. There is no evidence that the purchase-money was paid by G-. W. Jenkins, the husband, and the conveyance made to Mrs.
There is no merit in the exception contained in the fifth ground of the amendment to the motion for a new trial. The court properly excluded the testimony as to what Mrs. Jenkins’ neighbors knew as to what she inherited from her parents. It was a mere conclusion as to mere hearsay.
For the reasons stated in the second division of this opinion
Judgment reversed.
Concurrence Opinion
concurring" specially.
In the third, fourth, and sixth amended grounds of the motion for new trial the claimant complains of the rejection by the court of certain evidence therein set out; but it appears from the brief of evidence that this evidence was admitted and went to the jury for their consideration. In these circumstances this court will reconcile the statements in the motion for new trial that this evidence was withheld from the jury, and statements in the brief of evidence that it was introduced, on the theory that, while at one time the court made the ruling stated in such grounds of the motion for new trial, at some stage of the introduction of the evidence the testimony was admitted. Woods v. State, 137 Ga. 85 (3) (72 S. E. 908); Kent v. Central of Ga. Ry. Co., 144 Ga. 7 (85 S. E. 1017); Peek v. State, 155 Ga. 49 (2) (116 S. E. 629).
The court charged the jury: “The law is, that, between husband and wife, parent and child, brothers and sisters, payment
The court also charged the jury: “I charge you that in transactions between husband and wife the onus is on the husband and wife to show that the transaction was fair.” Movant assigns error on this charge, on the ground that it is inapplicable to the facts of the case, and misleading. This charge was an application of Civil Code (1910), § 3011, and was pertinent to one phase of the case. Kennedy v. Lee, 72 Ga. 39; Jones v. Foster, 150 Ga. 277 (103 S. E. 491). The existence of a secret equity of the wife in the land depended upon a transaction between the claimant and' her husband.
The court did not err in ruling out the testimony of the wife to the effect that the neighbors knew that she had inherited money from her parents’ estate.