70 Ga. 179 | Ga. | 1883
This bill was brought by Mrs. Oxford against her husband and M. M. Maddox, to recover $705.00 with interest, on the ground that her husband had used her separate estate to that amount to pay Maddox in part for a tract-of land bought for himself, and to charge the land after-wards sold by Maddox for balance of purchase money and bought by himself at the sheriff’s sale, with the debt off complainant, Maddox being cognizant of the fact that the-husband had used her money thus to pay his own debt.. Under the charge of the court, the jury found for complainant, principal and interest; a motion for a new trial was made, and on its denial error is assigned here, as well as upon the decree, because unauthorized by the verdict.
In this case, the complainant is in equity; she invokes the aid of a court of equity to get her rights; she must, therefore, do equity. There is no positive proof that the fund derived from the wife’s father’s estate was held in trust for her by the husband; nor is there any that he held it as a loan from her. If as a loan, the verdict is wrong, and there should be no recovery; if as her trustee, the husband is bound to account to her for principal and interest. If he has paid her the interest for her exclusive use, then she cannot recover it again from him. If she cannot recover it from him, it is difficult to reason to the conclusion that she can recover it from Maddox; for Maddox is ■only responsible upon the principle that he has connived knowingly with her husband in taking her money for his ■debt, and only to the extent of what is due thereon. Does it make any difference that her husband paid her the interest, not in cash, but in any other valuable thing equivalent to cash ? And if he did, does her husband owe her that much ? If he does not, Maddox does not; no more than he would owe her nothing at all, if her husband had paid the entire debt to her. As intimated in the case of Chappell vs. Boyd, in 61 Ga., supra, the creditor must logically and necessarily stand in the shoes of the husband, and be subrogated to his rights.
Now, the proof offered was to the effect that the husband was insolvent and wholly' unable to maintain his
We do not mean to say that Maddox can set off the entire usufruct of the land, or that spent in the support and maintenance of any of the family. It is only that spent by her for her own separate and' sole support; not that of child or children, but that which enured to her exclusive use which can be set off, upon the principle that her husband has paid her that, and has paid it out of Maddox’s, property, for her own separate support.
Nor do we mean to say how much the land contributed!
Bearing in mind the principle repeatedly rocognized by this court, that transactions between husband and wife .•should be closely scanned, as capable of being secretly •and fraudulently concocted to perpetrate wrong upon creditors of the husband, and that the principle is more •clearly and strongly applicable in cases where no writing •of any sort defines the agreements between them, we are less reluctant than we would otherwise be, to differ with the learned and able presiding judge in respect to the grant of a new trial; and we send the case back for the reason of the exclusion of the testimony offered bearing on the set-off, as well as for the reason that a more thorough investigation may open the case to a clearer view of the truth of the facts and the equities of the parties.
Judgment reversed. '