131 Ga. 688 | Ga. | 1908
Mrs. Estelle Stonecipher brought an action of complaint for land against James Hear. The defendant in his answer admitted possession; and the only defense made was that the plaintiff was estopped from recovering the land in question, by reason of the fact that defendant had been induced to purchase it on account of assurances made by plaintiff to defendant’s agent, to the effect that plaintiff did not own or have any interest in the land,but that the same belonged to her husband, John Stonecipher, from whom defendant subsequently purchased, relying upon such assurances, and to whom he paid the purchase-price. There was a verdict for the defendant. The plaintiff moved' for a new trial, and to the overruling of this motion she excepted.
Upon the trial the -plaintiff put in evidence a deed from B. C. Wilson and others, conveying the premises in dispute to her, -dated November 21, 1902, and recorded August 24, 1903; also, a deed from herself to J. N. Stonecipher, conveying the same land, recorded December 22, 1904, the date of its execution not appearing in the brief of evidence contained in the record. Plaintiff testified that J. N. Stonecipher was her husband, and that the deed she made to him to the property in question was in pursuance of a sale made of it by her to him, without being allowed by an order of the superior court of the county of her domicile. Plaintiff endeavored to show that the consideration of the deed from Wilson and others to herself swas her money paid to the grantors by her husband, J. N. Stonecipher; but the evidence submitted by her on this point was not sufficient to show that the money was hers. Even under her own testimony, the money legally belonged to her husband.
Where a husband pays his own money in the purchase of land and causes the conveyance to be made to his wife, the transaction will be presumed to be a gift by him to her, in the absence of evidence tending to show the creation of a resulting trust. Civil Code, §3160; Kimbrough v. Kimbrough, 99 Ga. 134 (25 S. E. 176); Jackson v. Williams, 129 Ga. 716 (59 S. E. 776). A sale by a married woman to her husband, without being allowed by an order of the superior court of the wife’s domicile, is void. Civil Code, §2490; Fulgham v. Pate, 77 Ga. 454 (2); Hood v. Perry, 75 Ga. 310; Flannery v. Coleman, 112 Ga. 648 (37 S. E. 878); Webb v. Harris, 124 Ga. 723 (53 S. E. 247); Carpenter v. Booker, ante, 546 (62 S. E. 983). See also Williams v. Williams Co., 122 Ga.
Was the .evidence for defendant sufficient to authorize a finding that plaintiff was estopped? We are clearly of opinion that it was not. There was evidence submitted by the defendant which would have authorized the jury to find, that, some two months prior to the purchase of the land by defendant from the plaintiff’s husband, the plaintiff told the defendant’s son, while he was inspecting the land in question, that she had no title to or interest in it, but that it belonged to her husband, and he alone had the right to sell it; that defendant’s son informed him of these declarations made by plaintiff. But there was no evidence that the defendant’s son was acting as the agent of his father, the defendant, when such representations were made by the' plaintiff. The son, in testifying about the inspection of the land, when the alleged representations of the plaintiff were made, said: “T just took a notion to come and see if I could find a better place than where we was at, and find land cheaper; come of my own accord, and was looking at the land of my own accord.” And there was no evidence that the defendant, in purchasing the land, relied and" acted upon the alleged declarations of the plaintiff, that she had no interest in it, and that defendant did not act upon his own knowledge of or judgment as to the title. It does not appear from the record that -the defendant testified in the case. While the plaintiff denied that she made the representations to defendant’s son, as testified to by him, she did, on cross-examination testify: “I seen Mr. Hear a time or two when he bought the land, but did not have any conversation with him. I knew he.was buying it from my husband; I did not tell him anything about my title; I did not think it was any of my. business; I did not tell him anything about title in myself. I .don’t know that the old man come to see me at all; the first time I saw him was over at my home on the place, talking to my husband and Mr. Whaley; I suppose he was talking about buying the place;'that is what I thought; I never said a word about it being
As above stated, the evidence failed to show that defendant, in purchasing the land, relied -upon the alleged representations of the plaintiff that the land belonged to her husband. There were circumstances, however, tending to show that defendant acted upon his own knowledge and judgment. The conveyance from plaintiff’s husband to defendant and the notes of the latter to the former for the purchase-money of the land were written in Cohutta, but were not signed there. The husband and the defendant, after the deed and notes had been prepared, went to Dalton, the county-site, and to the office of the clerk of the superior court, to see, as the witnesses expressed it, that everything was all right. They had a conversation with the clerk in reference to the matter, but what was said does not appear; and defendant, before the execution of the papers, went to an attorney’s office to consult him in reference to the title. “A fraud may be committed by acts as well as words; and one who silently stands by and permits another to purchase his property without disclosing his title is guilty of such a fraud as estops him from setting up such title against the purchaser.” Civil Code, §3823. It has been held, however, that the provisions
As the defendant failed to show that he was a bona fide purchaser without notice, so as to bring his case within the provisions of the Civil Code, § 3823, as interpreted in Brown v. Tucker, and Wilkins v. McGehee, supra, and also failed to show that he acted upon the alleged declarations of the plaintiff that the land belonged to her husband, and that he did not act upon his own knowledge or judg
Judgment reversed.