Buchannon v. James

• Decision Date: 19 November 1910
• Citation: 136 Ga. 392,69 S.E. 543
• Parties: BUCHANNON v. JAMES et al.
• Court: Georgia Supreme Court

69 S.E. 543

(136 Ga. 392)

BUCHANNON

v.JAMES et al.

Supreme Court of Georgia.

Nov. 19, 1910.

(Syllabus by the Court.)

1. Husband and Wife (§ 129^*)—Conveyance to Secure Husband's Creditor — Sale — Ratification by Wife.

A wife upon a valuable consideration conveyed land to her husband without the approval of the superior court of the county of her domicile. The husband conveyed with notice to his creditor to secure a debt, conferring on the creditor a power of sale. A sale was had under the power, and the wife voluntarily yielded possession to the purchaser. Held, that the wife is not entitled to recover from her husband's creditor the proceeds of such sale.

[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 468-470; Dec. Dig. § 129.*]

(Additional Syllabus by Editorial Staff.)

2. Husband and Wife (§ 48*)—Conveyance to Husband—Cancellation.

Under Civ. Code 1895, § 2490, providing that no contract of sale of a wife as to her separate estate with her husband shall be valid, unless allowed by the superior court of the county of her domicile, a deed made to effect a sale by a wife to her husband without such approval, and the husband's subsequent conveyance to his creditor with notice, are clouds on the title of the wife's property, entitling her to cancellation in equity.

[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 242-248; Dec. Dig. § 48.*]

Error from Superior Court, Early County; W. C. Worrill, Judge.

Action by A. B. Buchannon against D. W. James and others. Judgment for defendants, and plaintiff brings error. Affirmed.

W. A. Jordan, M. C. Edwards, and Wooten & Hofmayer, for plaintiff in error.

R. H. Sheffield, Pope & Bennet, and Park & Collins, for defendants in error.

EVANS, P. J. The case as made by the original petition was that the plaintiff, a married woman, had sold her land to her husband; that the sale was void, because not having the approval of the superior court of her domicile; and that the subsequent transfer of the land by her husband to his creditor to secure the husband's debt, taken with notice that the sale from her to her husband was without the approval of the superior court, was also void; and the prayer was to cancel the deed from the husband to the creditor, and to enjoin the execution of a power of sale thereunder. At a succeeding term of the court the plaintiff amended her petition, alleging that upon the interlocutory hearing the court refused to restrain the sale of the land under the power, and did not give the plaintiff the opportunity to give bond or make other provision to suspend the sale until she could have excepted to the interlocutory order by writ of error to the Supreme Court, and until a final verdict and decree could be had in the trial court; that, upon the revocation of the temporary restraining order and the refusal of an ad interim injunction, the creditor proceeded with the execution of the power of sale, and sold the land for its fair value; that the plaintiff surrendered possession of the land to the purchaser; that the fund derived from the purchase of the land thus sold equitably belongs to her;...