178 Ga. 248 | Ga. | 1934
E. M. Sheffield had three notes against Mrs. Lila Sheffield, his brother’s wife, one of them being secured by a deed to the land, made subject to a prior security deed in favor of the "Volunteer State Life Insurance Company. E. M. Sheffield sued on
Gr. H. Sheffield filed an answer admitting some of the allegations of the petition and denying others, and averring specifically that the plaintiff, on July 2, 1923, executed to the Yolunteer State Life Insurance Company a deed to the land in controversy to secure a debt of the plaintiff, evidenced by notes, and the insurance company executed a bond for title to reconvej the land; on August 1, 1923, the plaintiff made and executed a security deed to E. M. Sheffield to secure an indebtedness of hers in the principal sum of $479.84, which indebtedness was evidenced by a note dated August 1, 1923, and due October 1, 1924, with interest at 8 per cent, per annum from date; that in 1926 E. M. Sheffield obtained judgment against the plaintiff in a suit on the notes, and executions were issued thereon; later, in 1928, B. A. Sheffield, the husband of the plaintiff, informed Gr. H. Sheffield that the plaintiff had lost her case which she had carried to the Court of Appeals, and wanted to sell the land to G. EC. Sheffield for $5000, which was refused by the defendant; and B. A. Sheffield later came to the defendant and asked him to take the land and pay off the indebtedness which the plaintiff owed to E. M. Sheffield, as well as the indebtedness due the insurance company. As a result of negotiations between the parties it was agreed by Lila Sheffield that she was to deed the land to E. M. Sheffield and transfer the bond for title from the insurance company to E. M. Sheffield in compromise and settlement of the cases wherein E. M. Sheffield had brought suit on notes, and that E. M. Sheffield was to assume the payment of the loan to the insurance company, and transfer the three fi.. fas. in his favor against the plaintiff to her husband, B. A. Sheffield; that E. M. Sheffield was to sell the land and transfer the indebtedness above described to G. H. Sheffield, who in turn was to give B. A. Sheffield an option
1. Ground 1 of the amendment to the motion for new trial recites that the court gave in charge to the jury Civil Code (1910) §§ 2993, 3007, and further charged the jury as follows: “If a part of the consideration of the deed in question in this case was the lifting of certain encumbrances upon the property, it was a valid charge thereon; and if the remainder of the consideration was to be appropriated to the extinguishment of the debt of the grantor’s husband, the deed itself, being one entire transaction, can not be upheld, because of the impossibility of separating that which is legal from that which is illegal. But if the real object of the conveyance was to appropriate the value of the property conveyed, in excess of the amount represented in the encumbrance discharged, to the extinguishment of the debt of the husband, actually existing at the time of the conveyance or in contemplation at that time, while a part of the consideration would be valid, the other would be illegal and the deed, being one entire transaction, can not be upheld, because of the impossibility of separating that which is legal from that which is illegal. It is not the case of a mortgage given to secure several debts, some of which are legal and some illegal, and in which that which is legal may be cut off from that which is illegal; but it is a case in which the whole, the entire transaction, is so infected with the virus of illegality that there is no possibility of upholding the deed executed in pursuance of it as a conveyance of title. A sale by the wife of her Separate estate, made to a creditor of her husband in extinguishment of her husband’s debt in part and in settlement of the wife’s debt in part, the contract being entire and not divisible, is void.” The court also charged that “A mortgage given by a wife upon her own property in settlement of a debt of her husband is not binding upon her, al
2. Special ground 2 of the motion for new trial assigns error on the following charge of the court: “If you believe from the evidence that Lila Sheffield procured G. H. Sheffield to take up the indebtedness claimed against her by E. M. Sheffield and that she made the deed to the land to E. M. Sheffield at the request of G. H. Sheffield, the deed would be a valid and binding conveyance even though the debt claimed against her by E. M. Sheffield may have in fact been the debt of her husband. In other words, a married woman in this State is permitted by the law to procure a third person to pay a debt owing by her husband to some one else. This is true even though the person paying the debt may know that it is the debt of her husband.” It is contended that this charge is contrary to the evidence and without evidence to support it. The pleadings and the evidence tended to show that the plaintiff requested G. H. Sheffield to purchase the land and take up the indebtedness against it, and in the course of the transaction it was necessary that the plaintiff make a deed to E. M. Sheffield, as the latter held a security deed to the land, as well as other liens, and then E. M. Sheffield deeded the land to G. H. Sheffield and canceled his liens against the land. This charge is not subject to the criticism urged.
3. Special ground 3 assigns error upon the following instruction: '“The court charges you further . . that if you believe from the evidence in this case, that is by a preponderance of the evidence, that this deed in question, that is the deed from Mrs. • Lila Sheffield to E. M, Sheffield, was made and executed and de
4. The court did not err in refusing a new trial.
Judgment affirmed.