107 Ga. 650 | Ga. | 1899
Mrs. Nancy Parker filed an equitable petition setting up substantially the following facts: By the fifth item of his will Eleazer Adams devised to his daughter Nancy certain lands. The devise is in the following language : “I give, bequeath, and devise unto my beloved daughter Nancy, for her sole and separate use for and during her natural life, free and exempt from the debts and liabilities of any future husband she may marry or have,” the lands described, etc. The testator also bequeathed to his daughter certain negro slaves and other personal property, subject to the same limitations which attached to the land. The will took effect in 1854, and therefore the estate which the daughter took, and the nature of it, must be determined by the laws then in force. After the execution of the will and before the death of her father, Nancy intermarried with W. H. Parker. On the death of her father Parker took possession of the lands devised in the will, as well as the negro slaves and other property, and by the use of said property accumulated a considerable fund which from time to time was invested by Parker in certain other lands, the title to which he took in his own name. She
Inasmuch as the demurrer which raised the questions presented in this case was not joined in by certain of the defendants, and the judgment of the court below will be construed so as to dismiss the petition only as to the Barnesville Savings-Bank, only the questions raised by the demurrer will be passed on. From the view which we take of the law which governs-the case, we find it necessary to consider only one of the grounds of the demurrer, that is, that the petition contains no grounds for relief. It may be- well to consider for a moment the question as to whether the rules absolute granted to the bank on its mortgages against Parker were inadvertently or by mistake allowed by the court. If they were, it would have been the duty of Parker to have moved to set them aside in the court-
It is not at all necessary, however, for the purposes of this case, for us to enter into a discussion of the character of the estate which the husband took in the lands and property of the wife prior to the act of 1866. A discussion of this subject was had in the case cited supra. By reference to the will of Adams, the father of Mrs. Parker, it will be noted that the property was devised to her “for her sole and separate use for and during her natural life, free and exempt from the debts and liabilities of any husband she may marry or have.” By the common law, under such a devise the husband took no estate in the property of his wife. The rule which governed such devises is found in 2 Washburn on Eeal Property, 5th ed. 561, and is embodied in this language: “Where an estate is conveyed to a married woman, expressly to her sole and separate use, a court of equity will hold her husband as her trustee, and not allow him to claim the rents and profits thereof as his own; and if he become bankrupt, these will not pass to his assignees.” That this was the legal effect of such a devise was ruled by this court in the case' of Fears v. Brooks, 12 Ga. 195. There, delivering the opinion of the court, Nisbet, J., said: “A separate estate may be made in a feme sole, as well as in a married woman, which, upon marriage, will be good against the marital right; and this, although no particular marriage be in contemplation. Upon marriage, th.e trust will immediately attach upon the property, so as to exclude the husband’s title, although no further settlement be executed. The interposition of a trustee, to protect the separate estate, was at first deemed essential, because the interest of a married woman is the subject only of equitable cognizance. It is, however, now settled that a separate estate may exist, without the intervention of trustees. In that case, the husband will take the
It must, therefore, appear, under the allegations in the petition, that Mrs. Parker had either the right to treat her husband as a debtor to the value of the trust fund in his hands, or to assert her equitable claim of ownership in the property purchased with her funds. In this case she has elected to do the latter. After the passage of the act of 1866, she had the legal title, and could have compelled her husband to convey the lands, so purchased, to her. If he had any claim against her for services, it would have to be adjudicated and would have been simply a charge against the trust estate. In no event would he in any sense become part owner, of the land or be in a position, as against her, to deny a resulting trust as to all lands purchased with her money. But the same rule can not
In the present case, when the bank, without notice, acquired its mortgages (and no notice to it is charged in the petition), the wife was completely cut off from asserting, as against it, her secret equitable claim of ownership. As owner, she has no footing in court, unless she can show that the bank had notice of and took subject to her equity. This she does not even propose to do. The bank then acquired a legal lien on the property, even though the mortgage may be infected with usury. If the holder of the legal title who mortgaged the land to the bank could entirely defeat or reduce the claim of the bank, this would enure incidentally to the benefit of the holder of the secret equity. She can not herself, however, litigate with the bank on the idea that in equity it is bound to recognize her equitable claim of ownership. Her right to assert an equitable interest in the land ceased when the bank was induced to part with its money on the faith of the husband’s ownership, and it has the right to treat him, and him alone, as the only person at interest, so far as title is involved. Attention may here be called, as has been before suggested, to the fact that the wife had her election, as against her trustee, to either ratify or repudiate his unauthorized investment of her funds. By ratifying his acts, she could set up ownership of the lands purchased with her money. By repudiating his acts, she could call him to account for a misappropriation of trust funds and trace the same into the lands in question, as against all persons affected with notice. As regards the bank, which acquired rights in the land without notice, she can not pursue the former course and claim the land as hers. Nor can she subject the land to the payment of the debt her husband owes her, if she elects not to ratify his investment of her money, because the bank is an innocent mortgagee entitled to be first paid. There is, therefore, no equity in her petition as filed; for there is a plain statutory remedy open to her, by
For these reasons, the demurrer to the petition was properly sustained; and the judgment of the court below is
Affirmed.