McArthur v. Ryals

• Decision Date: 25 June 1926
• Docket Number: 5069.
• Citation: 134 S.E. 76,162 Ga. 413
• Parties: McARTHUR v. RYALS et al.
• Court: Georgia Supreme Court

134 S.E. 76

162 Ga. 413

McARTHUR v. RYALS et al.

No. 5069.

Supreme Court of Georgia

June 25, 1926

Syllabus by the Court.

The court did not err in overruling the demurrer. Permissive possession of land can never ripen into a prescriptive title until an adverse claim and actual notice is given to the other party.

Grounds 4, 7, 8, 9, 12, 13, and 15 of the motion for new trial are merely an elaboration of the general grounds, and are without merit, there being sufficient evidence to authorize the verdict.

The exception in ground 11 of the motion for new trial is that the charge therein complained of was unauthorized by the evidence, but an examination of the evidence shows that the charge was authorized, and the exception is without merit.

Ground 14 of the motion for new trial complains that the court erred in charging the jury that a husband may legally sell his property to his wife for her money without first obtaining an order from the superior court of her domicile. "In this particular case the court charged the jury a husband may legally sell his real estate to his wife for her separate money and make her a good deed without first obtaining an order from the superior court of her domicile. Movant says this charge of the court was error and had much to do with influencing the jury in a verdict for the plaintiffs." For the reasons set out in the second division of this opinion, the charge complained of is not erroneous for any reason assigned.

"Even if a deed from a husband to his wife, conveying land for a money consideration, falls within the provisions of the Civil Code 1910, § 3009, which declares that 'no contract of sale of a wife as to her separate estate with her husband *** shall be valid, unless the same is allowed by order of the superior court of the county of her domicile,' so that such a deed without an order of court is invalid, the right to assail its validity on this ground is personal to her and her privies in blood or estate."

The charge of the court set out in the third division of the opinion is not error on the ground that the judge either expressed or intimated an opinion as to what had or had not been proved; what was said by the trial judge was merely a statement of what the court understood to be the contentions of the plaintiffs.

Error from Superior Court, Tattnall County; W. W. Sheppard, Judge.

Suit by M. M. Ryals and others against Henry Ryals, on whose death Susannah McArthur, executrix, was substituted. Judgment for plaintiffs, and defendant brings error. Affirmed.

Hines J., dissenting.

W. T Burkhalter, of Reidsville, for plaintiff in error.

A. S Way and H. H. Elders, both of Reidsville, for defendants in error.

HILL J.

The substance of the petition is set out in the foregoing statement of facts. The defendant demurred to the petition on the grounds that the plaintiffs were not entitled to the relief sought, that the claim is out of date, that the plaintiffs are seeking indirectly to do what they cannot do directly, that if they have a claim it is for specific performance, and the facts alleged are stale, and the law will not maintain their claim in an action of specific performance, for the reason that something like 40 years has elapsed, and an attempt to recover by way of ejectment and accounting cannot be maintained when they have no title to the lands, and the law will not decree them a title.

1. We are of the opinion that the facts set out in the petition are sufficient to withstand the demurrer which was overruled by the court. Permissive possession of land can never ripen into a prescriptive title until an adverse claim and actual notice is given to the other party. Civil Code 1910, § 4164. No such notice appears from the petition in this case. It appears from the petition that after Mrs. Ryals, the mother of some and grandmother of the others of the plaintiffs, paid to the defendant Henry Ryals the full purchase price of the land, he continued to hold possession thereof for the wife without making her a deed to the land, which he had agreed to do. In these circumstances it will be held that the wife held the land under a perfect equitable title.

2. Ground 6 of the motion for new trial complains that in the trial of the case there was "no contention or evidence that this said sale and purchase of the said $1,200 for the said real estate was allowed by any order of any superior court of said state, but, on the contrary, the evidence shows no such order was obtained. Therefore the said sale was invalid, and the wife's remedy was to recover back her money if she wanted to. Movant further contends from plaintiffs' contentions it conclusively is presumed that his said wife made him a gift of the said $1,200, which he knows he never did receive under any condition," etc. This contention is without merit.

"Even if a deed from a husband to a wife, conveying land for a money consideration, is invalid because evidencing a sale of the separate estate of the wife, for which no order *** has been obtained in accordance with the provisions of the Civil Code, § 2490, the right to assail its validity on this ground is personal to the wife and her privies in blood or estate, and cannot be asserted by a stranger to her title." Scaife v. Scaife, 134 Ga. 1, 67 S.E. 408.

In Williams v. Rhodes, 149 Ga. 170, 99 S.E. 531, it was held:

"Even if a deed from a husband to his wife, conveying land for a money consideration, falls within the provisions of the Civil Code, § 3009, 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,' so that such a deed without an order of court is invalid, the right to assail its validity on this ground is personal to her and her privies in blood or estate. Munroe v. Baldwin, 145 Ga. 215, 88 S.E. 947. It cannot be asserted by a creditor of the husband, who has reduced his debt to judgment against the husband after the deed by the husband to the wife, and caused the land to be levied upon as the property of the husband under an execution based on such judgment."

It will be observed that the plaintiff in error is not claiming title under his wife, but is claiming adversely to her, "and that he has never offered to sell it to his deceased wife; that he has held it for the past 40 years as his own property." So it cannot be said that he is either the privy in blood or estate of his wife. It is true the jury found in his favor a one-fifth interest in the land in question as an heir at law of his wife; but his pleadings and evidence are to the effect that he did not claim under his wife, but that he held a separate and distinct title.

3. Ground 10 of the motion for new trial complains that the court erred in charging the jury in violation of the Civil Code of 1910, § 4863, prohibiting the judge from either expressing or intimating an opinion as to what has or has not been proved, to wit:

"This is a suit brought by M. M. Ryals and others against Henry Ryals. It is an equitable suit, not exactly in the way of the recovery of lands, but to decree the title in them, claiming the right and equitable title in certain described tract of land along with Henry Ryals; and they have brought this suit to declare their title and interest in it, and ask for a partition; and they further ask that Mr. Ryals, who has been for a long time in the peaceable possession of it, I mean in the permissive possession of it, using it with their consent, that he be required to account for the rents, issues, and profits

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