Bacon v. Bacon
| Decision Date | 15 September 1925 |
| Docket Number | 4623. |
| Citation | 133 S.E. 512,161 Ga. 978 |
| Parties | BACON v. BACON et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where the court conditionally admits evidence, reserving a final ruling upon its competency until a later stage of the trial it is not to be expected that the court will bear the matter in mind and of his own motion exclude that which had been provisionally admitted; and it is the duty of counsel objecting to the admission of such testimony to remind the judge of the circumstances and to invoke a later and final ruling, if he so desires. In such circumstances as those referred to, the failure of the court to exclude testimony thus provisionally admitted is not error, unless a request to that effect be preferred by the party originally objecting to the admission of the evidence. Stone v. State, 118 Ga. 705 (9), 45 S.E. 630, 98 Am.St.Rep. 145; Cawthon v State, 119 Ga. 395 (7), 46 S.E. 897; Thomas v State, 129 Ga. 419 (2), 59 S.E. 246; Sasser v. State, 129 Ga. 541 (3), 59 S.E. 255; Lindsey v. State, 138 Ga. 818 (7), 76 S.E. 369.
Where the case referred to an auditor is one in equity, and exceptions of fact are filed to the report of the auditor, the approval or disapproval of the exceptions to the findings of the auditor upon the facts is within the discretion of the court, and the exercise of that discretion will not be interfered with unless manifestly abused.
An exception of fact to the report of an auditor purporting to set forth evidence adduced upon the hearing before the auditor is too defective to be considered, unless there is embraced in the exception so much of the evidence as is referred to, as fully and as clearly as would be required in the ground of a motion for a new trial complaining of the admission or rejection of certain specified evidence.
If, considering the report of an auditor as a whole, the result reached by the auditor in his ultimate finding is a correct conclusion of the cause, the report should be confirmed, regardless of the reasons assigned by the auditor as those upon which his finding is predicated.
Where a husband clothed by a written power of attorney, with general control of the property of his wife (said husband being also president of the corporation in question), canceled a certificate of stock for 1,400 shares standing in the name of his wife, and had a new certificate issued to her for 600 shares only, having certificates for 800 shares of stock issued to himself which were taken from his wife's previous holdings, and thus placed them in his own name upon the books of the corporation, even though the legal title passed to the husband, the shares were impressed with a trust, and they were in equity still the property of the wife, as were likewise all income or profits arising or derived from said stock.
Under the circumstances stated in the foregoing headnote, without more, a finding upon the part of an auditor that the estate of the husband, now deceased, was entitled to any portion of the proceeds of the 800 shares of stock, would be reversed, because a wife cannot sell any portion of her separate estate to her husband without an order from the judge of the superior court authorizing and confirming the sale, and in this case no such order was sought or obtained.
Nevertheless, in Georgia, a wife, except as otherwise restrained by law, has the same powers and rights as a feme sole. She can make some contracts with her husband. She can appoint her husband as her agent. She can enter-into partnership with her husband in business enterprises, and the right to appoint an agent or to operate a joint business necessarily includes the right to make settlements in order to terminate the agency or the business.
The evidence authorized, if it did not demand, a finding that the husband was many years ago appointed by the wife as her agent; that for many years he transacted all her business, with results highly profitable to her separate estate, until finally there was a termination of the agency by mutual consent and a settlement between the parties which was free from fraud and not effected by any undue influence exerted by the husband over the wife. There was evidence showing that the terms of this settlement had been recognized by both parties as an accord and satisfaction, and were accepted and acted upon by the wife up to the time of her husband's death.
The court did not err in disapproving the exceptions of fact and overruling the exceptions of law, and thereafter making the report of the auditor the decree of the court.
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Suit by Mrs. Julia H. Bacon against Sumner W. Bacon, executor of the will of G. M. Bacon, deceased, and another. Judgment for defendants, and plaintiff brings error. Affirmed.
Colquitt & Conyers, of Atlanta, and L. M. Blair, and Morris, Hawkins & Wallace, all of Marietta, for plaintiff in error.
George & John L. Westmoreland, Reuben R. Arnold, and Lowry Arnold, all of Atlanta, for defendants in error.
In the bill of exceptions the plaintiff further excepts to the judgment overruling and disapproving her exceptions of law, upon the ground that the court erred in overruling and disapproving said exceptions, because under the law and under the evidence in the case the court should have sustained and approved all of the exceptions of law upon each and all of the grounds therein taken and set out. In the bill of exceptions it is alleged that the rulings upon the exceptions of law and of fact which are excepted to are controlling in the result of the case, and, being controlled in effect, the judgment and decree could not be a legal termination of the case, and thereupon exception is taken to the decree "upon the ground and for the reason that, as plaintiff insists, treating as true and correct the findings of fact as made by the auditor, the said final judgment and decree of the court is erroneous, in that it is contrary to the law, and contrary to the evidence in said case, and contrary to the findings of fact as made by the auditor, and plaintiff says that said final judgment and decree of the court is erroneous and contrary to law, even though the findings of fact as made by the auditor be treated as true and correct." From the above statement, as gathered from the bill of exceptions, it will be seen that but two major questions, each necessarily subject to subdivision, are presented for determination: (1) Did the court err in overruling the exceptions of fact, and in thereby refusing to submit any question of fact to a jury? (2) Did the court err in overruling the exceptions of law, or any of them, whereby a result was reached different from that which should have obtained in the case?
In 1876 G. M. Bacon married Julia R. Holcomb, a daughter of Thomas Holcomb, of Savannah. It appears from the record that Mr Bacon was at the time without financial means, but it does not appear that the bride received a dowry of any kind or amount. In 1883, after Mr. Bacon had farmed, either as an overseer or tenant, for several years, he went upon what was known as the "Troup Butler place" containing 1,025 acres of land in the Ninth district of Mitchell county. The place was then in possession of one Davis, as receiver of Bacon and Welch. On January 25, 1884, Mr. Bacon borrowed $2,000 from his father-in-law, Thomas Holcomb, and executed and delivered to him his note for that amount. On the next day, January 26, 1884, Davis, the receiver, in consideration of $2,250, made a deed to the Troup Butler place, containing 1,025 acres, and embracing certain numbered land lots therein named, to Julia H. Bacon, and the deed was duly recorded. This land appears to have been always returned for taxes by the husband, G. M. Bacon, in the name of Mrs. Bacon and as her property, until...
To continue reading
Request your trial