56 Ga. 79 | Ga. | 1876
The defendant obtained judgment against Joseph Sanders on the 22d of May, 1866, and the execution issued thereon was levied upon a tract of land which Dansby claimed. On
This debt was created prior to the constitution of 1868. Therefore no right against the judgment vested in the husband and wife by the homestead. If it had vested, the sale was illegal under the ruling of this court in Roberts and wife vs. Trammell, page 383, and claimant acquired no title. The homestead is therefore out of the question, and makes the case no better or worse for either side. The wife, however, signed the deed ; the court below held that she .conveyed thereby whatever title she had, and the claimant stands in her shoes and is subrogated to her rights. Suppose that this is a correct view of the law in respect to the rights of the claimant against her, and that she would be estopped in a contest with him,
The analogies springing from our statute laws in relation to husband and wife at the time of the purchase of this land in 1860, strengthen this view of the law. At that time, the marital rights of the husband attached to the wife’s property as a general rule, and all marriage settlements' had to be recorded, or such settlements were void against bona fide purchasers or .creditors. This money was brought into Georgia by the husband, no notice given that it was his wife’s, the deed was taken to the husband, and he appeared as absolute owner until after the judgment, and then for the first time the wife’s equity is recorded in the shape of a deed from him to
We forbear to say anything upon the question how far the law of Alabama, giving the wife a separate property in money, would be enforced in Georgia when that money was invested by the husband in lands in Georgia, as no point is made upon it.
We see no error in the ruling on the admissibility of the evidence of Mr. and Mrs. Cauders. There does not seem to have been any record or better evidence of the money having been the wife’s in Alabama.
We reverse the judgment because we think the court erred in holding that this property was not subject to this judgment, if the creditor. credited on the faith of its being the debtor’s, and had no notice of the wife’s equity.
Judgment reversed.