Byrd v. Vance

• Decision Date: 20 September 1924
• Docket Number: 3984.
• Citation: 124 S.E. 705,158 Ga. 787
• Parties: BYRD v. VANCE ET AL.
• Court: Georgia Supreme Court

124 S.E. 705

158 Ga. 787

BYRD v. VANCE ET AL.

No. 3984.

Supreme Court of Georgia

September 20, 1924

Syllabus by the Court.

The plaintiff in error failed to show that the paper under which his land was sold was that set forth in his petition. It appears that the property was regularly advertised and sold in accordance with the terms of a deed to secure a debt, with power of sale therein conferred.

(a) Even if it may be unlawful for either husband or wife to purchase at a sale which his or her spouse is conducting as an agent or in any other fiduciary capacity, still no rule of law inhibits a married woman from exercising an agency to sell land for another, where duly authorized in writing; and in such a case no order from the superior court of the domicile of the feme covert is appropriate.

Where in a petition brought to restrain one who has purchased property at what is alleged to be an illegal and invalid sale from interfering with the possession of the petitioner, and for other relief, the defendant answering the petition prays for an order removing the plaintiff from the possession of the premises and placing the defendant in possession, it is error, upon an interlocutory hearing of the case in advance of a trial, to order the removal of the plaintiff from the premises and the placing of the defendant therein unless the plaintiff within 10 days surrenders possession of the premises to the defendant.

Additional Syllabus by Editorial Staff.

The Supreme Court, being for correction of errors, cannot pass on questions not submitted to trial court.

Error from Superior Court, Haralson County; F. A. Irwin, Judge.

Suit by Zack Byrd against Mrs. Morgan Vance and others. Judgment for defendants, and plaintiff brings error. Affirmed in part, and reversed in part.

Taylor Smith, of Atlanta, for plaintiff in error.

Lloyd Thomas, of Tallapoosa, for defendants in error.

RUSSELL C.J.

The exception to the order refusing an interlocutory injunction presents two branches. The plaintiff in error excepts because the court refused to restrain J. J. Vance from aliening or incumbering the property referred to in the statement of facts, and from interfering with the petitioner's peaceable possession and enjoyment of the premises until the further order of the court; and also excepts to the latter portion of the order of the chancellor, which required the plaintiff in error to surrender possession of the premises to J. J. Vance, who had purchased the several lots in the city of Tallapoosa set out in the petition.

1. The exception to the refusal of the court to grant an interlocutory injunction cannot be sustained. The plaintiff entirely failed to show that the paper under which the property was brought to sale was a mere mortgage which had been given in renewal of a previous mortgage for $130, nor did he establish any other fact which affected the validity of the deed purporting to have been executed and delivered to Mrs. Morgan Vance. The deed was not subject to the attack raised by the plaintiff in his petition. The ground upon which the prayer for injunction was predicated in the petition was that the purchase by J. J. Vance was void because he had bought the property of his wife, Mrs. Morgan Vance, without an order of the superior court authorizing the wife to sell her property to her husband, as provided in the Civil Code, § 3009. The evidence showed that Mrs. Vance was not selling her own property, nor was any of her property purchased by her husband. Under a power of sale Mrs. Vance advertised and sold the property of Zack Byrd as his agent, and it appears that she had...