77 Ga. 444 | Ga. | 1886
The plaintiffs’ lessors, as the children and heirs at law of Allen R. Johnson, sought to recover the possession of the premises in dispute from the defendant, Fletcher, and claimed that their ancestor, who died intestate, was in possession at the time of his death, and that the title devolved on them as a portion of his heirs at law, their mother, under whom the defendants claimed, being their co-heir.
We are, however, of a different opinion, and hold that, from the time of its execution, her possession of the premises became adverse to his, although he jointly occupied the land with her. Had this deed been a conveyance from a third person to the wife, and had it contained no words settling the property to her separate use, it would not have had the effect of divesting the marital rights of the husband, but it is otherwise where the deed is made directly from the husband to the wife. The intention of the parties to the transaction is to be regarded, indeed, this is a cardinal rule of construction, and m order to give effect to that intention, and to give any effect to the deed, we must conclude that it was the purpose of the parties to create a trust in favor of the wife, otherwise the deed would have been an idle and unmeaning ceremony, or, as has been well said, the enactment of a legal farce. From a very early period, courts of equity thus treated and thus construed such transactions; they converted the deed into a
The question considered being decisive of the case, it is unnecessary to consider other assignments of-error made in the record. It may not be out of place, however, to state, as no complaint is made by any creditor of the ancestor of plaintiffs lessors, or any claim preferred by any bona fide purchaser for value from him, that a good consideration would be sufficient to support a conveyance from him to his wife, without insisting, as it seems to us might have been done, that this deed, being made in settlement of a family dispute and to induce the wife, then living separately from her husband, to return to his home and resume her marital duties, is sustained by a far higher consideration than one of mere affection and good will.
Since the verdict, under this view of the law, was imperatively demanded by the facts in the record, the plaintiffs’ lessors were not hurt by the only charge of the court to which they excepted, and which we think erroneous, both as an abstract principle of law and as applicable to the case then before the court.
It is not correct to charge that a wife, remaining’for the statutory period after the death of her husband upon lands which had belonged to him and upon which she had reared their family of minor children, held adversely to these minors, who were her co-heirs in the estate, which devolved upon all of them on the death of the husband and father intestate.
Judgment affirmed.
48 Am. Dec. 386.