44 Ga. 437 | Ga. | 1871
1. Section 1720 of the Revised Code is in these words: “After a separation no transfer by the husband of any of the property, except bona fide in payment of preexisting debts, shall pass the title so as to avoid the vesting thereof, according to the final verdict of the jury in the cause.” Unless this section is to have some other meaning than appears upon its face, every purchaser of property from the husband, after the separation, takes the title subject to the final verdict of the jury in the divorce cause. It is said that this meaning is so unreasonable, so contrary to justice and propriety, that it is the duty of the Court, if possible, to give the section a different construction. It is contended that the exception in the section, “except bona fide in payment of pre-existing debts,” furnished a fair opening for such a construction. One little word “ or,” it is insisted, ought to be inserted so as to make the exception read, “ except bona fide, or in payment of the preexisting debts.” This, it is said, would protect bona fide purchasers, without notice of the separation. This class of persons, it is said, are not only entitled to b.e protected upon principles of justice, but are, by another section of the Code, section 3037, declared entitled to it in very broad language, to-wit: “ A bona fide purchaser, for value without notice of equity, will not be interfered with by a Court of equity.” It is said, too, that the broad language of section 1720, if taken literally, works a great hardship on the husband, as under it, though he has a large estate, he can dispose of none of it, not even to obtain the necessaries of life.
To all this it may be replied, that this little word “or ’ would ■ make the whole section of no effect. If the husband may sell “ bona fide,” that is, honestly, in good faith,
Is not everybody bound to take notice that one is an infant, or that a woman is married ? Why should not everybody be bound to take notice that a man has separated from his wife? The least inquiry in the neighborhood where he resides would almost always discover the fact. One is bound to make such inquiries, to know if there be a lis pendens, or a judgment, or a marriage settlement, and if the Legislature so provides, we see no objection, in furtherance of the public policy of protecting the wife, to putting the fact of separation on the same basis.
It will be noticed that this section of the Code does not make the sale void; it simply says, “ a transfer shall not take place so as to prevent the title from vesting according to the verdict.” The husband may sell subject to the verdict, and if he have sold property for purposes consistent with this policy of the law, to protect the wife, the jury will see to it, in their verdict, that no wrong is done by their decree.
2. The purchaser, as we have said, buys subject to the verdict. He is a privy to it; he stands in the shoes of the husband, and is bound by the verdict. Without doubt, the husband could not set up this agreement after and against the verdict. Supposing it to have been fairly made, and to
3. If we are right as to the question of the construction of section 1720 of the Code, the husband is under a disability to transfer any of the property after the separation, so as to prevent the vesting of the title according to the verdict. No ¿is pendens is necessary to give notice; the sale is prohibited by law, and everybody is bound to take notice. This disposes of the argument that the schedule does not affirmatively appear, in its present shape, to have been on file at the date of the sale. The proof is that the papers had been lost and a schedule was made out as nearly like the original as possible, and sworn to anew, because the estimated value of the property was changed from Confederate money valuation to a valuation in United States currency. We know of no authority that a ¿is pendens ceases to be notice if the papers be mislaid. Here was, in any event, notice that a suit for divorce was pending, and any one who knew this knew, by the law of the land, that all the property owned at the separation was subject to the final verdict. It was not necessary
Judgment reversed.
While A bought property at public auction, sold as the property of B, and paid therefor a full consideration, and at the time of the sale B and his wife were separated, under section 1720 of the Code, I do not think the title of the husband was so limited as to prevent the sale of the property bona, fide by the mere fact of the separation, or that it was 'the duty of A to inquire into the domestic relations of B, and that the wife’s rights or equities are superior to those of a bona fide purchaser for consideration without notice.
When a divorce suit was filed in 1864, and the schedule sworn to containing the property in controversy was filed
When the schedule contained the description of the property as one lot in the city of Atlanta, I think the description too indefinite and uncertain as to the property claimed to operate as notice by lis pendens, so as to defeat the title of a bona fide purchase, etc.
When, upon the record, it appeared that B and his wife had a settlement for alimony, in which adequate means were admitted to be made by the wife who signed the same, I think such record may be asserted by A in defense of his rights.
When the verdict of the jury is in favor of the wife for the property contained in the schedule, being one lot in the city of Atlanta, I think such judgment does not divest the title of a bona fide purchaser under the facts; and, upon the record, I think the judgment of the Court below ought to be affirmed.