Knox v. Harrell

• Decision Date: 09 August 1921
• Docket Number: 12015.
• Parties: KNOX v. HARRELL ET AL.
• Court: Georgia Court of Appeals

108 S.E. 117

26 Ga.App. 772

KNOX v. HARRELL ET AL.

No. 12015.

Court of Appeals of Georgia, Second Division

August 9, 1921

Dissenting opinion.

For majority opinion, see 107 S.E. 594.

JENKINS P.J. (dissenting).

In my opinion, the evidence in this case demanded a verdict in favor of the plaintiff. In Hull v. Sullivan, 63 Ga 127, it was held that--

"Where a person having property for sale, such as land and a steam sawmill, agreed upon the price with one wishing to buy, but who could not consummate the purchase on his own account, because some of the security required belonged to his wife, and thereupon the husband induced his wife to become the purchaser through him, and the contract was thus consummated, the conveyance of the property being made directly to the wife, and she giving her notes and mortgage for the purchase money, the mortgage embracing not only the property then conveyed to her, but also other property constituting her separate estate, she is bound as purchaser and mortgagor if the seller and mortgagee committed no fraud upon her nor knew of any committed by the husband."

This principle of law was restated in McDonald v. Bluthenthal & Bickart, 117 Ga. 120, 45 S.E. 422, as follows:

"The fact that the owner refuses to sell the husband because of his inability to give security does not prevent an immediate sale of the same property to the wife; and if title to the property is, with her knowledge, conveyed to her and she executes a mortgage thereon and on other property belonging to her, to secure the purchase money notes, she does not assume the debt of her husband, nor is she surety for him, but is liable as principal and purchaser."

See also, Simmons v. International Harvester Co., 22 Ga.App. 358 (5), 96 S.E. 9.

All of these cases are based upon the principle laid down in Schofield v. Jones, 85 Ga. 816, 819, 11 S.E. 1032 that, where a creditor at the time the debt is created really and in good faith intends to extend the credit to the wife, and not to the husband, and the consideration for her promise passes legally and morally to her, the transaction will be treated as a valid one, provided the seller committed no fraud on her and knew of none committed by the husband. See, also, Longley v. Bank of Parrott, 19 Ga.App. 701, 92 S.E. 232.

Thus the mere fact that in the instant case there had been previous negotations between the vendor of the corporate stock and the husband, whereby it had been originally proposed that the husband would become the purchaser thereof would not prevent a subsequent valid and binding sale between the vendor and the wife, provided her contract of purchase was not induced by fraud or duress perpetrated upon her by the vendor, or by another with his knowledge. There is not the slightest evidence going to show that the vendor made any statement or resorted to any sort of artifice calculated to mislead the wife as to the true nature and character of the papers she was about to sign. It is absolutely clear and undisputed that the vendor and the husband had by mutual consent abandoned the original plan of procedure, whereby the husband was to become the purchaser. If, therefore, there was any fraud practiced...