110 Ga. 875 | Ga. | 1900
Ida L. Stallings exhibited to the judge of the superior court a bill praying an injunction, in which she alleged that she was the widow of C. C. Stallings, deceased; that she was the head of a family consisting of herself and five minor children; that in April, 1880, her husband was largely involved in debt, and voluntarily executed a deed to her conveying a certain tract of land in Monroe county. She alleges that she had no knowledge of the intention of her husband to make her a deed of gift of said land; that in October, 1880, she repudiated the deed of gift, which she alleges had never been delivered to her, and elected to take a homestead in the land as the property of her husband; that she made application to the ordinary of said county, on the refusal of her husband so to do, and had set apart for the benefit of herself and minor children a homestead in the land which was described in the deed from her husband to herself. She further alleges that by intimidation and duress her husband forced her, subsequently to the setting aside of the homestead, to sign an application to borrow money, giving the said land as security; that she never received any money and had nothing to do with the transaction other than to sign the papers presented; that her husband died subsequently, and the debt for the borrowed money was never paid; that the notes given for the same were sued to judgment, and the execution issuing thereon was levied on the land which is included in the homestead, which was duly advertised and sold by the sheriff and purchased for the plaintiff in execution. She alleges that the sheriff and the attorney for the plaintiff in execution threaten to dispossess petitioner from her homestead; that they are interfering with her tenants and are seeking to obtain possession and control of said land. She thereupon prays for an injunction to restrain the sheriff and B. S. Willingham, attorney for Hattie E. Stanley, a non-resident, who was the plaintiff in execution, from interfering further with her in the possession and control of such land, and that such injunction be made permanent. The petition is verified. On its presentation a rule was granted, calling on the defendants to show cause why the injunction should not be granted; and a restraining order in terms of the prayer of the petition was granted until the hear
The evidence at the hearing was substantially as follows: The petitioner testified, that her husband died in 1892; that since his death she has lived upon the land which she claims as a homestead, together with her five minor children, the oldest of which is about seventeen years of age; that she is now in possession; that in April, 1880, her husband made her a deed of gift to said land, which includes the homestead; at which time he was in debt to a number of persons, and such deed being void as to creditors, she abandoned the same and made application to have the land described in the deed set aside to her as a homestead, the same being the property of her husband, and he refusing to máke such application. She further testified as to the
Under the evidence in this case, all legal questions, save one, are easily eliminated. After the judgment had been rendered against the petitioner, it was entirely too late for her to rake the question as to her liability on the notes given for the borrowed money. The questions of usury, duress, and other matters of defense were' settled by the judgment against her, which must be taken as final and conclusive of the various facts insisted on in her petition as avoiding her liability; and that judgment created a good and valid lien on all of her property, which it was the plaintiff’s right to enforce. The sole question which remains is, whether she had title to the land which she conveyed to Mrs. Stanley as security for the debt, under the conveyance made to her by her husband. If she had, the injunction was properly refused. If she had not, but held it as the beneficiary of a homestead set aside out of the property of her husband, then the instrument executed by her was of no effect, and the judgment rendered on the notes given created no lien on the land set .apart. It can not make any difference, if-the homestead is valid, whether she did or did not, at the time she borrowed the money, represent that the land belonged to her and that it was unincumbered. In the case of Planters Bank v. Dickinson, 83 Ga. 711, it was ruled, where a wife created a mortgage on land which had previously been set apart out of her husband’s estate to her as a homestead, that she was not estopped from denying the validity of such mortgage. In the opinion, which was delivered by our present Chief Justice, it is declared that “there is no law which will prevent her from denying her capacity to make this particular contract. She or any one else can claim the protection of the constitutional provision denying her or them the right to make such a contract.” If the homestead was legally set apart, then, necessarily, the land which it embraced belonged to the husband. The legal efféct' of so setting it aparr
If, in construing the evidence of Mrs. Stallings wherein she says that in April, 1880, her husband made her a deed of gift to the land, it be claimed that this implies delivery, we are. not prepared to assent to the conclusion. In the case of Buffingion v. Thompson, 98 Ga. 416, it was claimed that a deed there under consideration was not valid, for want of delivery. It appeared that the defendant, who was attacking the deed, had by her pleading admitted that the grantor had “ executed ” the deed in question. The court held that the word “ executed,” when used with reference to a conveyance, technically comprehended not only signing and sealing, but delivery also, but that in a popular sense it meant signing and sealing; arid construed the plea to make only this admission, because it further appeared that the defendant in her plea averred that such deed had never been accepted, by the grantee. So, we think, taking all of the evidence H Mrs. Stalling's on this subject together, that it amounts to a distinct assertion that she never accepted the deed of gift from her husband. Whether this be true or not is a question of fact upon which the allegation and proof that in six months after the date of such deed she applied for a homestead in this land, alleging if to be the property of her husband, sheds some light. If it be said that the deed was admitted to record and that such record raises a presumption of delivery, the reply is that the evidence of Mrs. Stallings may be considered sufficient to rebut such presumption in the entire absence of any evidence on the part of the defendants showing delivery. Another view, however, may be
Judgment reversed.