Hood v. Perry

• Decision Date: 31 October 1885
• Citation: 75 Ga. 310
• Parties: Hood . vs. Perry et al.
• Court: Georgia Supreme Court

75 Ga. 310

Hood . vs. Perry et al.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Husband and Wife. Debtor and Creditor. Constitutional Law. Before Judge Brown. Milton Superior Court. February Term, 1885.

A fi.fa. against a married woman was levied on her interest, as dowress, in certain realty, and her husband interposed a claim. His claim was based on a sale from his wife to him and a deed thereunder, dated in 1881, the judgment having been obtained in 1883. No order of the superior court allowing the sale was taken. The court charged, in effect, that, in the absence of such an order, the title of the husband would not be good. The jury found the property subject. The claimant moved for a new trial, which was refused, and he excepted.

Thomas L. Lewis; J. P. Brook, for plaintiff in error.

J. A. Dodgen; E. Faw; W. J. Winn, for defendant.

Hall, Justice.

Two questions are submitted for our determination: (1.) Whether a sale made by a married woman to her husband, without being allowed by the order of the supe-rior court of the county of her domicile, is valid, or whether such sale is void or only voidable.

(2.) Whether a judgment creditor of the wife can subject property thus sold to her husband to the payment of such judgment debt, or whether the wife alone can set aside the sale.

1. In Cain vs. Ligon, administrator, et at., 71 Ga., 692, we held that a gift by the wife to the husband was not per se void, where the gift was made without the order of the superior court, but was voidable only at the option of the donor, or, in case of her death, of her administrator or heirs. We drew the distinction between a sale and a gift_? and said that if the terms had been synonymous, then the gift would fall, equally with a sale, within the restrictions imposed by the 1785th section of the Code, which declares that " no contract of sale of a wife, as to her separate estate, with her husband or trustee, shall be valid, unless the same is allowed by order of the superior court of the county of her domicile.", We further held that a gift, in certain respects, was the very opposite of a sale, and therefore did not fall within the restriction which this section imposes upon a married woman as to the persons to whom she might sell her property. This was not mere argument or illustration, not obiter dictum, as was assumed by counsel, but was essential to the decision of the question made. In that case, we said that this restriction applied to sales only, and that we could not add gifts to it without transcending the power of the court to interpret, and...