Sasser v. Sasser

• Decision Date: 02 October 1884
• Parties: SASSER v. SASSER.
• Court: Georgia Supreme Court

73 Ga. 275

SASSER v. SASSER.

Supreme Court of Georgia.

October 2, 1884

September Term, 1884.

1. A husband cannot use his wife's separate money to buy property for himself; and if he invests her funds in real estate in his own name, equity will fix a trust upon the land; and having jurisdiction for one purpose, it will do complete justice and give full relief between the parties.

2. Where a wife filed a bill against her husband, to have an account of dealings between them, and to fix a lien upon property in which her husband had invested her funds, and the defendant claimed that such money as he had used had been given to him absolutely by his wife, there was no error in charging that " whenever the question arises as to the passing of property from the wife to the husband, it must be closely scrutinized, if the husband claims it as a gift to him; and it must clearly appear that it was a free and voluntary gift by the wife to the husband; and if the evidence does not clearly establish that the same was a gift then the husband is liable to the wife for all such property as went into his hands and was used by him."

3. Matters of practice, and especially the opening of defaults are largely in the discretion of the court. Where a defendant, at the first term, filed a demurrer to a bill which was heard at a subsequent term, and overruled, and after the trial had proceeded, and the testimony on both sides had closed, he asked leave to file an answer, there was no error in requiring him to pay costs before so doing.

4. Under a bill filed by a wife against her husband for an account of the dealing between them, and to trace funds of hers invested by him in land in his own name, a portion of the answer, in the nature of a cross-bill, which sought to obtain the custody of the infant child of the parties alleged to be held by the wife, who had separated from her husband, and to enforce her return to his home, and to enjoin certain alimony proceedings instituted by her, was not germane to the main bill, and was properly stricken on demurrer.

5. Where it was sought to show that funds and property of the wife had been used by the husband, including a certain promissory note which had been collected by the husband, except a small credit, there was no error in admitting parol evidence as to the amount of such note so collected, the object being not to go into the contents of the writing, but only to show the amount collected and used by the defendant belonging to the plaintiff.

6. There was no error in allowing complainant's solicitor to show that demands were made on the defendant for a settlement of the matters in controversy, and the refusal of the latter to comply with such demand. This differs from admitting in evidence negotiations for a compromise.

7. The evidence is sufficient to sustain the verdict as to the amount found in favor of the complainant against the defendant.

( a. ) Although the entire amount found to be due was not invested in the land on which a special lien was decreed, yet, as a decree would bind all the property of the defendant from its date, including such land, it does not concern him whether the lien be general or special; and there being no contest in this case on the part of other creditors or holders of liens, the fixing of a special lien did no harm to the defendant.

( b. ) Semble, that a wife need not be living separately from her husband in order that money earned by her by sewing during coverture should form a part of her separate estate, and that such money is an acquisiton which belongs to her.

Husband and Wife. Trusts. Gifts. Equity. Liens. Practice in Superior Court. Cross-bill. Evidence. Compromise. Practice in Supreme Court. Before Judge CLARKE. Early Superior Court. April Term, 1884.

Reported in the decision.

BACON & RUTHERFORD, for plaintiff in error.

H. C. SHEFFIELD, by J. H. LUMPKIN, for defendant.

HALL Justice.

The main purpose of the bill filed in this case was to trace certain funds of the wife into land purchased by the husband, and to have an account of the dealings between them, and a decree for the amount found to be due from him to her. Without taking this account, from the character of the dealings between them, it would have been impracticable, if not impossible, to attain the object for which the bill was filed. That equity had jurisdiction to fix the trust on land into which the wife's money had gone, and to declare her lien upon it, is undeniable; and it is equally clear that, if it has jurisdiction for one purpose, it has it for all, so far as concerns the complete adjustment of the transactions in dispute; it does nothing by halves, but having the parties rightfully before the court, it will do complete justice between them, and will proceed to give full relief. Code, §3085. The bill alleges that, on January 1st, 1878, she was married to plaintiff in error, and they lived together until April 1st, 1880, when they separated; that she is in possession of their only child; that while she was living with her husband, she advanced to him certain money and notes, and with them he bought certain lands; that since the separation, she has demanded of him to return her the money, or to give her enough of the land to pay her, but he refused to do so; that she has proposed to him various ways of settlement, all of which he refused, declaring that, if she got any money from him, she would have to get it by law, and that he knew how to prevent her getting any of it; and that she believes that he intends to defraud her of her money and interest in the lands in which it is invested.^[*] She prays judgment of the court for the amount due her, and for decree requiring defendant to make titles to her to so much of the land as will pay her; also for injunction and receiver.

To this bill plaintiff filed an amendment, in which she prays that defendant be decreed to be trustee for her as to all of the property, to the extent of the funds of hers applied by him in the purchase thereof, and for judgment against him as such trustee, and that the property be decreed to be subject.

A demurrer was filed to the bill, on the following grounds:

(1.) Because there is no equity in the bill.

(2.) Because the complainant has a complete common law remedy.

(3.) Because the complainant cannot maintain the said suit in the capacity in which she sues, and under the allegations in said bill.

The court overruled the demurrer, and then required the defendant to pay the costs before he would be allowed to file his answer. Defendant paid the costs and answered the bill, in which he admitted the marriage and separation, but denied that his wife ever advanced him any money, except $30.00 in money and a note, which she gave him as an absolute gift. [The judge certifies that the evidence had closed on both sides before it was proposed to file an answer.]

The following portions of defendant's answer were stricken:

" And, at the same time, carried off respondent's child, to whom he is devoted, and his said wife has refused to permit the child to visit respondent, or permit respondent to visit his own child. Respondent shows that, notwithstanding all this, he has earnestly endeavored to induce his wife to return to his home, but she has persistently refused to do so. Respondent shows that his home is now open, and always has been open, for the comfort, support and protection of his wife and child. And respondent shows that he has never refused to support his wife and child, but has always been ready and willing to do so; but submits that he should be allowed the right and privilege of every other married man to support his own family at his own home; and that he has, since his marriage, labored earnestly and laboriously to accumulate what he could to make that home as comfortable as possible; and this home stands now, with all of its doors open, ready to receive her and respondent's child, without let or hindrance; and respondent most earnestly submits that his wife should not be permitted or encouraged to break up his home, and undo what she has freely and voluntarily done. Respondent admits that it is true, as charged in complainant's bill, that at the time when this bill was filed, his wife had brought a suit for divorce; yet respondent shows that, after several years of litigation, in which his wife had put him to great expense, more than the small sum which she had given him, the court decided that she had no grounds for divorce or separation. Respondent further shows that, since the courts have decided that the said complainant has no legal grounds for a divorce, or for a separation from bed and board, the said complainant has filed an application for alimony, and praying a judgment against this respondent. Therefore, respondent files this, his answer, in the nature of a cross-bill, and prays the decree of this court awarding him the custody of his child. And respondent further prays that, as it has been decided by the courts of the country that his wife had no grounds for divorce, either total or partial; that the complainant be decreed and required to return to the home of respondent, where she will be gladly and affectionately welcomed, and made as comfortable as the means of this respondent will admit. Respondent further prays that the said suit for alimony be enjoined from proceeding further against him, and that he may be relieved from the trouble, harassment and expense of defending the same."

The plaintiff was introduced as a witness, and swore substantially to the allegations in her bill. Her lawyer, H C. Sheffield, was also introduced, and testified to making various attempts to a settlement between the parties. Defendant was introduced as a witness, and denied substantially the...