Singleton v. Close

• Decision Date: 19 May 1908
• Citation: 61 S.E. 722,130 Ga. 716
• Parties: SINGLETON v. CLOSE.
• Court: Georgia Supreme Court

61 S.E. 722

130 Ga. 716

SINGLETON v. CLOSE.

Supreme Court of Georgia

May 19, 1908

Syllabus by the Court.

Section 2436 of the Civil Code of 1895, "After a separation, no transfer by the husband of any of the property, except bona fide in payment of pre-existing debts, shall pass the title so as to avoid the vesting thereof, according to the final verdict of the jury in the cause," construed in connection with its cognate sections, does not restrict a transfer by a husband of his property, made bona fide and for value, prior to the institution of a divorce suit, but is operative only on conveyances by the husband made during the pendency of a libel for divorce.

A contract for the sale of land, signed by both parties stating the place where it is dated, and describing the land as "the western portion of lot forty-one (41), Flannery Ward, together with all improvements thereon," and stipulating that the "seller is to occupy residence No 221 36th Street West," for a given time after the sale sufficiently identifies the property sold to satisfy the statute of frauds and to allow extrinsic proof to apply the contract to its subject-matter.

[Ed Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, §§ 226-230.]

The evidence did not demand a verdict for the prevailing party, and the judge did not abuse his discretion in granting a new trial.

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by N. B. F. Close against Mrs. W. R. Singleton. Judgment for defendant. From an order granting a new trial, he brings error. Affirmed.

R. R. Richards and Edward S. Elliott, for plaintiff in error.

Adams & Adams, for defendant in error.

EVANS P.J.

Mrs. W. R. Singleton agreed to sell to N. B. F. Close a lot of land in the city of Savannah for $4,800, and to receive in payment therefor a lot of land owned by Mr. Close, of the agreed value of $2,000 and $2,800 in cash. The memorandum of sale was as follows: "Savannah, Ga., July 7, 1906. Mr. N. B. F. Close: We have this day sold you and you agree to purchase the western portion of lot forty-one (41), Flannery Ward, together with all improvements contained thereon, for the sum of forty-eight hundred dollars ($4,800.00). Terms as follows: Purchaser giving western forty feet of lot twenty-five (25), Cumming Ward, in lieu of two thousand dollars ($2,000) and balance of twenty-eight hundred dollars ($2,800.00) in cash. Taxes, state, county and municipal, and water rent, to be prorated to date of transfer. It is furthermore understood that seller is to occupy residence No. 221 36th Street West at the rate of $30 per month from date of transfer to October 1, 1906. Sale subject to examination of titles of both properties involved. We acknowledge to have received five dollars ($5.00) in part payment of above, which is to be returned in the event sale not consummated on account of imperfect titles. [Signed] Haines & Hunter, Agts. [L. S.] Mrs. W. R. Singleton. N. B. F. Close. [L. S.]" On examination of the title it was discovered that Mr. Prendergast, a previous owner of a portion of the property which Mr. Close was to convey in part payment, was living separate and apart from his wife at the time he conveyed it to Mr. Close's grantors in 1899, and Mr. Prendergast and his wife are still living in a state of separation. Mrs. Singleton rejected the title because of this fact, whereupon Mr. Close brought his petition to compel specific performance. A demurrer to the petition was filed and overruled. The case proceeded to trial, and resulted in a verdict for the defendant, and the court granted a new trial. The exeception is to the ruling of the court on demurrer and to the grant of a new trial.

1. The principal question to be settled is whether the circumstances alleged make a defect in the title, so as to render it unmarketable. In order to make clear the objection urged against Mr. Close's title, we will insert in full three sections of the Civil Code, of 1895:

"Sec. 2435. Schedule.-In all suits for divorce, the party applying shall render a schedule, on oath, of the property owned or possessed by the parties at the time of the application-or at the time of the separation, if the parties have separated-distinguishing the separate estate of the wife, if there be any, which shall be filed with the petition, or pending the suit, under the order of the court. The jury rendering the final verdict in the cause may provide permanent alimony for the wife, either from the corpus of the estate or otherwise, according to the condition of the husband and the source from which the property came into the coverture.

"Sec. 2436. Transfer pending suit.-After a separation, no transfer by the husband of any of the property except bona fide in payment of pre-existing debts, shall pass the title so as to avoid the vesting thereof, according to the final verdict of the jury in the cause."

"Sec. 2438. The verdict of the jury shall specify the kind of divorce granted, and the disposition to be made of the scheduled property."

Counsel for Mrs. Singleton contend that under these sections of the Code any person who purchases property from a husband after separation takes the property subject to the final verdict in a divorce suit, which may be subsequently brought, where the property is embraced in the schedule of the husband's property. In Venable v. Craig, 44 Ga. 437, section 2436 was under consideration and was applied to the facts of that case. It appeared that Venable, pending a libel for divorce brought against him by his wife, sold bona fide and for value certain property to Craig. The property was described in the schedule, but the schedule was lost, and pending the trial was established. The property embraced in the schedule as established was awarded by the jury to the wife, after its sale by the husband to Craig, and a writ of possession issued in her favor. Craig's bill was to enjoin the writ of possession. The court held that, under this section, the sale by the husband after the filing of the libel, the sale not being in payment of a pre-existing debt, did not vest the title in the purchaser, so as to prevent the vesting thereof in the wife in accordance with the verdict of the jury on the trial of the divorce case. On account of the schedule having been lost at the time of the transfer from Venable to Craig, McCay, J., said that at the time of the husband's transfer there was nothing of file so as to apply the doctrine of lis pendens, and the decision of the case was placed entirely on the Code section. This same section was under consideration in several other cases, in which it was held that, where the property of the husband is neither embraced in any schedule filed in a suit against him for divorce nor disposed of by the final verdict granting the divorce, a bona fide sale and conveyance of the same, made by the husband after the separation and pending a divorce suit, is not affected by the verdict and judgment thereon allowing alimony to the wife. Almand v. Seamans, 89 Ga. 309, 15 S.E. 320; Burns v. Lewis, 86 Ga. 591, 31 S.E. 123; Coulter v. Lumpkin, 94 Ga. 225, 21 S.E. 461; Driver v. Driver, 94 Ga. 449, 21 S.E. 154; Russell v. Rice, 103 Ga. 310, 30 S.E. 37. In Lamar v. Jennings, 69 Ga. 392, a third person advanced necessaries for the support of the wife while she was living separate and apart from the husband. A judgment was obtained on this demand against the husband, and an execution based thereon was levied upon land which the husband had transferred bona fide and for value, pending the separation and before the judgment was rendered, and the husband's vendee filed a claim thereto. It was there ruled that "section 1721 of the Code [Civ. Code 1895, § 2436] restricts the alienation of property by the husband after separation for the purpose of securing alimony to the wife when sought by her, and does not operate in favor of third parties." It seems to be clear, from the cognate Code sections and the decisions to which we have referred, that the property of the husband, the alienation of which is restricted by section 2436, is the property which is included by the applicant for divorce in the schedule filed in connection with the libel for divorce. It is the final verdict in the divorce suit which fixes the alimony claim of the wife upon the specific property embraced in the schedule.

In the present case no divorce suit had been brought, and the practical question is: If one should hereafter be brought and the wife should include in her schedule this particular property which the husband owned at the time of the separation, and which he sold subsequently thereto, but prior to the institution of the divorce suit, and if the same or a part thereof should be decreed by the jury to be part...