Cain v. Ligon

• Citation: 71 Ga. 692
• Parties: CAIN v. LIGON, administrator, et al.
• Decision Date: 02 October 1883
• Court: Supreme Court of Georgia

71 Ga. 692

CAIN v. LIGON, administrator, et al.

Supreme Court of Georgia.

October 2, 1883

September Term, 1883.

1. Since the act of 1866 (Code. §1754), a married woman is a feme sole as to her own property, and may make any disposition thereof not prohibited by statute. She is prohibited from selling to her husband unless allowed by order of the superior court, but there is no restriction as to her making a gift to him.

2. Where such transactions take place between persons sustaining certain confidential relations to each other (as that of husband and wife), they are not ipso facto void, but may be rendered void at the option of the donor, if induced by undue influence or other improper appliances or persuasions, or when brought about by anything amounting to constructive fraud. Such gifts will be scrutinized with great jealousy, and upon the slightest evidence of persuasion or influence, will be declared void, at the instance of the donor or her legal representative, at any time within five years after the making thereof.

Husband and Wife. Sales. Gifts. Fraud. Before Judge CLARK Stewart Superior Court. April Term, 1883.

Hobbs who was in possession of certain property, filed a bill to require John M. Cain and Ligon, administrator of Mrs. Emma M Cain, to interplead and settle their right thereto. It appeared that John M. Cain was the husband of Emma M. Cain deceased. He claimed the property under two deeds of gift executed by her to him in her lifetime. No order of court was shown allowing or confirming them. Ligon, administrator insisted that they were void, and the court so charged. There was other evidence not material here. After verdict for Ligon, administrator, Cain excepted.

E. G. SIMMONS; J. L. WIMBERLY; E. H. BEALL; R. F. WATTS, for plaintiff in error.

B. F. HARRELL; PEABODY & BRANNON; T. D. HIGHTOWER; C. F. CRISP, for defendants.

HALL Justice.

The question made by this record is whether a married woman can give to her husband, without the approval and sanction of the chancellor, any portion or all of her separate property, when it is not encumbered with a trust in which remaindermen and others are interested, and whether her deed conveying such property to him is void or merely voidable. The court below decided that a gift, under the circumstances, was void; the propriety of this decision is the point presented for adjudication.

Since 1866, Code, §1754, all the property owned by the wife at the time of her marriage, and all acquired by her during the coverture, remains her separate property, and is not liable to the debts or contracts of her husband. With this act a new rule of property was introduced with respect to married women, as has been frequently decided by this court, " and a corresponding enlargement of their legal capacity. With reference to her separate estate, a female, married or single, is now on full equality with a male, except in a few particulars defined by statute. Save in those particulars, when her equitable rights are commensurate with those of the male, her legal rights are also commensurate with his, and the difference of sex is utterly immaterial." 62 Ga. 738. She is inhibited from entering into any contract of suretyship, or from assuming the debts of her husband, and any sale of her separate estate in extinguishment of his debts, is made absolutely void. Code, §1783, and cases cited in note thereunder. No contract of sale made by a married woman of her separate estate with her husband, or her trustee, is valid, unless allowed by order of the superior court of the county of her domicile. Ib., 1785, and cases cited in note thereunder; also, Ib., 2337.

If a gift is synonymous with a sale, then this transaction falls within these restrictions; but if it is not, then its validity or invalidity is to be tested by a different principle. A sale is, according to Blackstone (2 Comm., 446) " a transmutation of property from one man to another, in consideration of some price." By Kent it is defined...