131 Ga. 416 | Ga. | 1908
Mrs. Nettie McCall Allen made a deed to her brother-in-law, Lee Allen, and on the same day the latter made a warranty deed to the American National Building and Loan Association, which conveyed by quitclaim deed to Taylor. After-wards Mrs. Allen brought ejectment against Taylor, to' recover the land. The defendant vouched Lee Allen as a warrantor. Mrs. Allen recovered judgment. Taylor brought suit against Lee Allen for a breach of warranty. The defendant pleaded that his deed to the association was without consideration; that he was never in possession of the land, and never owned or claimed title to it; that the deed from Mrs. Allen to him and that from him to the association were made to settle a criminal prosecution against Mrs. Allen’s husband on a charge of embezzlement preferred by the association against him; that this mode of conveyance was used at the instance of the association; and that “it was upon this consideration and for this reason alone that a deed was accordingly made by the said Nettie Allen to this defendant and from this defendant to the said association, with full, knowledge of all of the facts herein set out; and this defendant further avers that, in consideration of said aforementioned agreement, the prosecution instituted by the plaintiff against Thos. E. Allen was dropped and was not pressed further by plaintiff or his association, or by any of its officers or stockholders;” and that the deed made by him. was “a part and parcel of an illegal scheme to compound a felony.” Also, that the deed to him and-that by him to the association were for the purpose of effecting a payment by Mrs. Allen of her husband’s debt to the association, and that the dual conveyance was made at the suggestion of the present plaintiff as president of the association.
In the present case the defendant testified, among other things, as follows: Tom Allen was arrested on a charge of embezzlement. “A few days after that my brother’s wife, Mrs. Nettie McCall Allen, sent for me to come to her house. I went to her house and she was crying, and asked me to go down to the Building & Loan Association and offer them this property of hers at Buena Vista. "Well, at her request I went down to the Building & Loan Association. I did not make a statement,of this matter then. I went to Judge Fort in regard to the matter that day; he was the attorney representing the_Building & Loan Association, and as
A ruling on a demurrer to the petition will be found in 121 Ga. 841 (49 S. E. 799).
It seems to be clear, therefore, that not only was the matter of the illegality of the transaction a defense which could have been made in the ejectment suit, but also that it was actually passed upon. The present defendant was accordingly concluded on the subject, and could not again set up that defense. Nor was it any defense against a suit on his warranty that Mrs. Allen made her conveyance to pay the debt of her husband. The restriction on the right of a married woman as to conveying her property, and her right to' recover it if conveyed for the purpose of paying her husband’s debt, and if received and held by one with notice of that fact, is for her protection. Civil Code, §'2488. It is not for the protection of a man sui juris who takes a deed from her and warrants the title to another. The very object of the interposition of this conveyance to him and by him was probably to place a warrantor between her and the company, who could be held on his warranty if she repudiated her conveyance. So a minor may repudiate his contract or conveyance; but if .another warrants or guarantees that the minor’s conveyance shall be good, he is not relieved by the minor’s refusal to abide by it. The very reason for taking the warranty, if lawful, can hardly be a defense to a suit for its breach. A general warranty covers a known defect in the title. Civil Code, §3615; Allen v. Taylor, 121 Ga. 841. The point was raised by objection to evidence and to the charge, arid h.y attacking the verdict as not authorized by the evidence. The objection to the evidence is not well stated, but the assignment of error upon the charge and verdict is valid, and we think should be sustained.
Judgment reversed,.
We differ with our brethren as to the extent of the estoppel of the judgment in the ejectment case. Under the record in that case it appears that Mrs. Allen sought to evade the estoppel of her own deed, by showing it was given to settle her husband’s debt, and the defendant attempted to thwart that effort by urging that the real consideration of Mrs. Allen’s deed was to suppress a criminal prosecution, and that the law would not aid her in a recovery of the land. See Taylor v. Allen, 112 Ga. 330 (37 S. E. 408). The capstone of the legal principle asserted by the defendant to prevent a recovery. was, that Mrs. Allen had engaged in an illegal transaction; that her deed was made to suppress a prosecution for crime.' The participation of Lee Allen in her effort to suppress the prosecution was not an independent issue. The fact for adjudication was not that Lee Allen gave his deed to the association to suppress the prosecution, but did Mrs. Allen give her deed for that purpose? Now it may have been that Mrs. Allen gave her deed to settle her husband’s debt, without any purpose to settle.the warrants against her husband. It may have, been that Lee Allen’s only purpose in the transaction with Taylor and the association was to stifle the prosecution against his brother," and that Mrs. Allen had no connection therewith. The issue in the ejectment case did not