103 Ga. 310 | Ga. | 1898
This was a claim case which resulted favorably to the claimant. It appears from the record that Mrs. Phedora A. Kilgore instituted an action for a divorce against her husband, James L. Kilgore, and in connection with her libel filed what purported to be a schedule of his property. In this schedule, however, no mention was made of the land now in controversy. A divorce was granted, and the judgment entered upon the final verdict allowed to the wife and two minor children certain sums of money as alimony, and declared that the same should be a charge upon and bind all the property of the husband from the day the separation between his wife and himself took place. An execution issuing upon this judgment was levied upon the land now in dispute, and a claim to the same was filed by Mrs. M. E. Rice, who had, after the divorce suit was commenced, purchased this land from Kilgore, paying him full value for it, and taking from him a deed to the same. She knew at the time of making this purchase that Kilgore and his wife had separated, and that the latter had brought the action for divorce. It does not, however, appear that in selling the land to Mrs. Rice, Kilgore did so with any fraudulent intention of defeating any judgment for alimony which might be rendered against him, or that there was any reasonable ground on the part of Mrs. Rice for suspecting the existence of any such design. On the contrary, it is clear that she purchased in good faith and in the full belief that she was acquiring a perfect' title to the property. The court instructed the jury, in substance, upon the line indicated in the above headnote, and directed a verdict in favor of the claimant. The bill of exceptions alleges that this was error.
In order that the following discussion may be clearly understood, we will set forth in full three sections of the Civil Code. They are as follows: “§2435. Schedule. In all suits for divorce, the party applying shall render a schedule, on oath, of the property owned or possessed by the parties at the time of the application — or at the time of the separation, if the parties have separated — distinguishing the separate estate
Venable v. Craig, 44 Ga. 437, the case mainly relied upon by counsel for the plaintiff in error, does not support his contention, for in that case it distinctly appears that the property in dispute was included in the schedule filed with the libel for divorce, and in the final trial decreed to the wife as alimony for and during her life, with remainder to her children. Another case cited for the plaintiff in error was that of Lamar v. Jennings, 69 Ga. 392. That case simply held that section 1721 of the code then in force (Civil Code, ■§ 2436) restricted the alienation of property by the husband after separation solely for the purpose of securing alimony to the wife when sued for by her, and did not operate in favor of third parties. It is, however, evident that Justice Speer, who delivered the opinion of the court, thought that the property upon which this section was designed to operate was that only which might be included in the schedule; for, after referring to the provision for “the vesting thereof according to the final verdict of the jury in the cause,” he remarked that the wife’s right to her alimony is superior to the title of a bona fide vendee “whenever the
Judgment affirmed.