73 Ga. 275 | Ga. | 1884
The main purpose of the bill filed in this case was to trace certain funds of the wife into land purchased by the husband, and to have an account of the dealings between them, arid a decree for the amount found to be due from him to her. Without taking this account, from the character of the dealings between them, it would have been impracticable, if not impossible, to attain the object for which the bill was filed. That equity had jurisdiction to fix the trust on land into which the wife’s money had gone, and to declare her lien upon it, is undeniable ; and it is equally clear that, if it has jurisdiction for one purpose, it has it for all, so far as concerns the complete adjustment of the transactions in dispute ; it does nothing by halves, but having the parties rightfully before the court, it will do complete justice between them, and will proceed to give full relief. Code, §3085. The bill alleges that, on January 1st, 1878, she was married to plaintiff in error, and they lived .together until April 1st, 1880, when they separated ; that she is in possession of their only child ; that while she was- living with her husband, she advanced to him certain money and notes, and with them he bought certain lands; that since the separation, she has demanded of him to return her the money, or to give her enough of the land to pay her, but he refused to do so; that she has proposed to him various ways of settlement, all of which he refused, declaring that, if she got any money from him, she would have to get it. by law, and that he knew how to prevent her getting any of it; and that she believes that he intends to defraud her of her
To this bill plaintiff filed an amendment, in which she prays that defendant be decreed do be trustee for her as to all of the property, to the extent of the funds of hers applied by him in the purchase thereof, and for judgment against him as such trustee, and that the property be descreed to be subject.
A demurrer was filed to the bill, on the following grounds:
(1.) Because there is no equity in the bill.
(2.) Because the complainant has a complete common law remedy.
(3.) Because the complainant cannot maintain the said suit in the capacity in which she sues, and under the allegations in said bill.
The court overruled the demurrer, and then required the defendant to pay the costs before he would be allowed to file his answer. Defendant paid the costs and answered the bill, in which lie admitted the marriage and separation, but denied that his wife ever advanced him any money? except $30.00 in money and a note, which she gave him as an absolute gift. [The judge certifies that the evidence had closed on both sides before it was proposed to file an answer.]
The following portions of defendant’s answer were stricken: ■
“ And, at the same time, carried off respondent’s child, to whom he is devoted, and his said wife has refused to permit the child to visit respondent, or permit respondent to visit his own child. Despondent shows that, notwithstanding all this, he has earnestly endeavored to induce his wife to return to his home, but she has persistently refused to do so. Despondent shows that his home is now*279 open, and always has been open, for the comfort, support and protection of his wife and child. And respondent shows that he has never refused to support his wife and child, but has always been ready and willing to do so; but submits that he should be allowed the right and privilege of every other married man to support his own family at his own home; and that he has, since his marriage, labored earnestly and laboriously to accumulate what he could to make that home as comfortable as possible; and this home stands now, with all of its doors open, ready to receive her and respondent’s child, without let or hindrance; and respondent most earnestly submits that his wife should not be permitted or encouraged to break up his home, and undo what she has freely and voluntarily done. Respondent admits that it is true, as charged in complainant’s bill, that at the time when this bill was filed, his wife had brought a suit for divorce ; yet respondent shows that, after several years of litigation, in which his wife had put him to great expense, more than the small sum which she had given him, the court decided that she had no grounds for divorce or separation. Respondent further shows that, since the courts have decided that the said complainant has no legal grounds for a divorce, or for a separation from- bed and board, the said complainant has filed an application for alimony, and praying a judgment against this respondent. Therefore, respondent files this, his answer, in the nature of a cross-bill, and prays the decree of this court awarding him the custody of his child. And respondent further prays that, as it has been decided by the courts of the country that his wife had no grounds for divorce, either total or partial; that the complainant be decreed and required to return to the homo of respondent, where she will be gladly and affectionately welcomed, and made as comfortable as the means of this respondent will admit. Respondent further prays that the said suit for alimony be enjoined from proceeding further against him, and that he may be relieved from the trouble, harassment and expense of defending the same.”
The plaintiff was introduced as a witness, and swore substantially to the allegations in her bill. Her lawyer, H. C. Sheffield, was also introduced, and testified to making various attempts to a settlement between the parties. Defendant was introduced as a witness, and denied substantially the allegations of the bill, except as admitted in his answer.
The jury found $721.00 for the plaintiff, and that the land named in the bill was subject to the debt; and a decree was entered accordingly. Defendant in the bill made a motion for a new trial, on the following grounds:
(2.) Because the verdict of the jury is contrary to the evidence as to the amount of money invested in land by the defendant — that is, money claimed by the plaintiff.
(3.) Because the verdict of the jury is contrary to law, in that it found that the entire amount claimed by complainant was a lien upon the land of defendant, described in complainant's bill, without regard to the amount of money which defendant had invested in this land; both the bill of complainant and the evidence showing th it defendant had not invested the entire amount claimed by complainant in the land described in complainant’s bill.
(4.) Because the court erred in charging the jury, that “whatever amount of money you may find to be so due by the defendant to the complainant, on account of his having used her money and property, you may find the means of enforcing her rights, you may find the debt to be on the land described in the bill, and you may further find that the land be sold and the amounts paid to the complainant, and you may fix a time in which it shall be paid by the defendant to the complainant before a sale can be forced. You have to find such a verdict as to the mode of securing her rights as is equitable.”
(5.) Because the court erred in charging the jury, that “if you find from the evidence that the'complainant did not give the money and the note to the defendant, then the defendant is liable for her separate estate — whatever amount came into his hands and was consumed by him.”
(6.) Because the court erred in charging the jury, that if the defendant came into possession of any money or property which belongs to the complainant, and under the usual confidence existing between, husband and wife, was allowed to manage it for her, and it was not given to him, then the defendant is liable to the complainant for all such moneys or property which so went into his hands; and it is not necessary for complainant to prove that the
(7.) Because the court erred in charging the jury that, whenever the question arises as to the passing of property from the wife to the husband, it must be closely scrutinized, if the husband claims it as a gift to him, and it must clearly appear that it was a free and voluntary gift by the wife to the husband; and if the evidence does not clearly establish that the same was a gift, then the husband is liable to the wife for all such property as. went info his hands and was used by him.
(8.) Because the court erred in overruling the demurrer filed by defendant to complainant’s bill, which demurrer is a part of the record in this case, and to which reference is made.
(9.) Because the court, having overruled defendant’s demurrer, refused to allow defendant to file an answer in said case unless he first paid up all the cost which had accrued in said case.
(10.) Because the court erred in striking out certain parts of defendant’s answer, as above stated.
(11.) Because the court erred in admitting parol evidence as to the contents of the note of Drayt Douglass, under the facts ás set out in the brief of evidence; defendant objecting that the note is the highest and best evidence, as the parties disagreed as to the amount of said note; it being shown that the note had been placed by complainant in defendant’s hands, and that he had collected it; the court presuming that the note was cancelled and destroyed.
(12.) Because the court erred in refusing to strike from complainant’s bill, on motion of defendant made before the case was submitted to the jury, the allegations as to certain offers of compromise and settlement made to the defendant by the complainant prior to the filing of her said bill, and in permitting IT. O. Sheffield to testify to the same, as appears in the brief of evidence, over the objec
The motion was overruled, and defendant excepted.
We are inclined to the opinion that the jury, in their finding, must have given the defendant credit for most of the disputed items in the complainant’s account, including an item of $50, which she earned by her needle during hours of leisure at night after she had performed all of her day’s duties. This was, seemingly, not allowed, doubtless upon the idea that such earnings constituted no part of her separate estate, but belonged to her husband. To this view we are not prepared to yield an undoubting assent. We cannot say that she must be living separate from her husband to entitle her to such acquisitions, even under Section 1756 of the Code. The acquisitions therein em
These remarks are made out of abundant caution, because we do not wish to be considered as committed even by implication to a contrary view.
Judgment affirmed.
It was also alleged that the husband had no property except that sought to be subjected to the wife’s claim.