Scaife v. Scaife

• Decision Date: 17 February 1910
• Citation: 67 S.E. 408,134 Ga. 1
• Parties: SCAIFE v. SCAIFE.
• Court: Georgia Supreme Court

67 S.E. 408

134 Ga. 1

SCAIFE v. SCAIFE.

Supreme Court of Georgia

February 17, 1910

Syllabus by the Court.

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 of court has been obtained in accordance with the provisions of Civ. 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.

Where a wife is the plaintiff in a statutory complaint for land, and claims under a deed from her husband of the character referred to in the preceding note, and the defendant claims under the same grantor from whom the plaintiff alleges her husband acquired title, it is error to exclude such deed from evidence as a muniment of title, upon the objection of the defendant that it is void because it evidences a sale of the separate estate of the wife to the husband, not authorized by an order of court.

Error from Superior Court, Mitchell County; W. N. Spence, Judge.

Action by Hopie Scaife against M. J. Scaife. Judgment for defendant and plaintiff brings error. Reversed.

R. J Bacon and E. E. Cox, for plaintiff in error.

John D Pope and Davis & Merry, for defendant in error.

HOLDEN J.

Hopie Scaife brought suit against M. J. Scaife, making substantially the following allegations: The defendant is in possession of the tract of land described in the petition, title to which is in the plaintiff, who holds under a deed from J. F. Scaife. The defendant claims under a deed from the heirs of J. F. Bostwick, who claimed under a deed from J. H. Scaife, trustee for Paul B. Scaife, both of which deeds "are rank frauds and are wholly null and void for total failure of consideration, and was made for the purpose of defrauding your petitioner." Neither J. F. Bostwick nor his heirs ever owned or claimed the land, and he was a minor at the time the deed is alleged to have been made. The deed from J. H. Scaife to Bostwick was not in fact made until Paul Scaife had arrived at majority, and the trustee therefore had no right to make the deed. The plaintiff prayed that the deed under which the defendant claimed title be canceled as a cloud upon the title of the plaintiff, that the defendant be restrained from undertaking to convey the land or any interest therein, and that the plaintiff have judgment for the land, with mesne profits. The defendant answered that she bought the land from W. H. Spence, and it was paid for with her money; that her husband, J. H. Scaife, who was also trustee for Paul Scaife, acted for her in the purchase of the land, and he by inadvertence and mistake wrote the deed so that it purported to convey the land to him as trustee instead of to the defendant. It was intended by the parties interested that the mistake should be corrected by suit in the court, but J. F. Scaife, the father of Paul Scaife, to whom the matter was mentioned, said that would be unnecessary, as Paul Scaife would correct the matter by making the defendant a deed as soon as he became of age, and, if the defendant desired to sell the land before Paul Scaife became of age, it could be done by having the trustee to make a deed, as power of sale was given to the trustee in the deed made to him. The defendant in 1894 sold the land to J. F. Bostwick, and, on account of his being a minor, it was agreed that the deed be not made to him, but that, if he at any time wanted to make a sale of the land, the trustee could make a deed to the person to whom he sold it. In 1896 Bostwick became of age, and the trustee made him a deed, though Bostwick never paid the purchase money. Bostwick died in 1899, having paid practically nothing on the principal, and his heirs at law, not desiring to pay the balance of the purchase money, made the defendant a deed to the land.

Upon the trial it was admitted that the plaintiff and the defendant claimed under a common grantor, W. H. Spence. The plaintiff introduced a deed from Spence to J. H.

Scaife, trustee for Paul Scaife, to the property in dispute, which authorized the trustee to sell the property without an order of court, and a certified copy of the will of Paul Scaife, bequeathing the property to J. F. Scaife. It was admitted that J. F. Scaife was the husband of the plaintiff, and occupied this relation to her on March 24, 1900. Other testimony was introduced, and, upon the conclusion thereof, the court directed a verdict in favor of the defendant. To the order of the court overruling the motion of the plaintiff for a new trial exceptions were filed. The plaintiff assigned error also on the refusal of the court to allow an amendment offered by her, to the refusal of which exceptions pendente lite were duly made.

1. One of the grounds of the motion for a new trial is that the court committed error in refusing to allow the plaintiff to introduce in evidence a deed to her from her husband, J. F Scaife, wherein a money consideration was recited. It appears that the grounds on which the court refused to allow this deed in evidence was "that the said deed was one from husband to wife, and, as defendant contended, was void, because a sale by the husband...