62 Ga. 101 | Ga. | 1878
James W. Loveless bought a tract of land at the price of $1,500.00, paying $750.00 therefor, and getting Strickland to pay the balance of the purchase money, and to take the deed to the land to secure him. Strickland gave Loveless a bond to make titles on his paying him the balance of the purchase money, and on his failure to pay recovered judgment, made Loveless title under the statute, and levied the fi. fa. upon the land. Whereupon Mrs. Loveless set up an equitable claim to seven hundred and iifty dollars’ worth of the land, on the ground that hers was the $750.00 her husband had paid'for it, and prayed that she be decreed to have one-half the land, or that it be sold and she be first paid her money. Neither the pleadings nor the evidence offered showed notice to Strickland that the money was the separate estate of the wife, nor was there any allegation of the vendor’s insolvency; and the court below held that the equitable plea was insufficient without such allegations, and repelled the claimant’s evidence unless she could amend and prove such allegations. This ruling is assigned as error.
The court did not err. The case is covered by the case of Boyd vs. Chappell, 56 Ga., 22. The land should be sold and Strickland paid the balance of purchase money, and then if any be left the wife can assert her rights as against her husband, or his creditors on matters outside of the purchase money for this land. The verdict and judgment that the land is subject are right.
Judgment affirmed.
