Stonecipher v. Kear

• Decision Date: 16 December 1908
• Citation: 63 S.E. 215,131 Ga. 688
• Parties: STONECIPHER v. KEAR.
• Court: Georgia Supreme Court

63 S.E. 215

131 Ga. 688

STONECIPHER v. KEAR.

Supreme Court of Georgia

December 16, 1908

Syllabus by the Court.

Where purchase money is paid by a husband who causes the conveyance to be made to his wife, the transaction, in the absence of evidence to the contrary, is presumed to be a gift by him to her.

[Ed Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 249-255; Dec. Dig. § 49 1/2. ^[*]]

A sale by a wife to her husband is void when made without being allowed by an order of the superior court of her domicile.

[Ed Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 242-248; Dec. Dig. § 48. ^[*]]

When the estoppel sought to be set up relates to the title to real estate, the party claiming to have been influenced by the other's acts or declarations must have been ignorant, not only of the true title, but also of any convenient means of acquiring such knowledge.

[Ed Note.-For other cases, see Estoppel, Cent. Dig. §§ 196, 197; Dec. Dig. § 76. ^[*]]

The owner of property is not estopped from setting up his title thereto by reason of acts and declarations on his part alleged to have induced another to buy it as the property of a third person, unless it appear that the purchaser was ignorant of the falsity of such alleged inducements, and really acted upon them, and not upon his own knowledge or judgment.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 196, 197; Dec. Dig. § 76. ^[*]]

One who silently stands by and permits another to purchase his property without disclosing his title is not guilty of such fraud as estops him from setting up title thereto against a purchaser with notice.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 276-284; Dec. Dig. § 94. ^[*]]

Applying the well-settled principles of law above stated to the evidence in this case, the verdict rendered for the defendant in error was unauthorized, and the court, therefore, erred in overruling the motion for a new trial.

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by Estelle Stonecipher against James Kear. Judgment for defendant, and plaintiff brings error. Reversed.

W. E. Mann, for plaintiff in error.

R. J. & J. McCamy, for defendant in error.

FISH C.J.

Mrs. Estelle Stonecipher brought an action of complaint for land against James Kear. The defendant in his answer admitted possession; and the only defense made was that the plaintiff was estopped from recovering the land in question by reason of the fact that defendant had been induced to purchase it on account of assurances made by plaintiff to defendant's agent to the effect that plaintiff did not own or have any interest in the land, but that the same belonged to her husband, John Stonecipher, from whom defendant subsequently purchased, relying upon such assurances, and to whom he paid the purchase price. There was a verdict for the defendant. The plaintiff moved for a new trial; and to the overruling of this motion she excepted.

Upon the trial the plaintiff put in evidence a deed from B. C. Wilson and others, conveying the premises in dispute to her, dated November 21, 1902, and recorded August 24, 1903; also, a deed from herself to J. N. Stonecipher, conveying the same land, recorded December 22, 1904, the date of its execution not appearing in the brief of evidence contained in the record. Plaintiff testified that J. N. Stonecipher was her husband, and that the deed she made to him to the property in question was in pursuance of a sale made of it by her to him, without being allowed by an order of the superior court of the county of her domicile. Plaintiff endeavored to show that the consideration of the deed from Wilson and others to herself was her money paid to the grantors by her husband, J. N. Stonecipher, but the evidence submitted by her on this point was not sufficient to show that the money was hers. Even under her own testimony the money legally belonged to her husband. Where a husband pays his own money in the purchase of land and causes the conveyance to be made to his wife, the transaction will be presumed to be a gift by him to her, in the absence of evidence tending to show the creation of a resulting trust. Civ. Code 1895, § 3160; Kimbrough v. Kimbrough, 99 Ga. 134, 25 S.E. 176 (1); Jackson v. Williams, 129 Ga. 716, 59 S.E. 776 (1). A sale by a married woman to her husband, without being allowed by an order of the superior court of the wife's domicile, is void. Civ. Code 1895, § 2490; Fulgham v. Pate, 77 Ga. 454 (2); Hood v. Perry, 75 Ga. 310; Flannery v. Coleman, 112 Ga. 648, 37 S.E. 878; Webb v. Harris, 124 Ga. 723, 53 S.E. 247; Carpenter v. Booker (Ga.) 62 S.E. 983. See, also, Williams v. Williams & Co., 122 Ga. 178-181, 50 S.E. 52, 106 Am.St.Rep. 100; Floyd v. Ricketson, 129 Ga. 668, 59 S.E. 909 (1). Applying these principles of law to the evidence submitted in behalf of plaintiff, and to the admission in defendant's answer that he held under the conveyance from plaintiff's husband, a verdict in favor of plaintiff for the recovery of the land in question was demanded, in the absence of evidence tending to establish defendant's plea of estoppel.

Was the evidence for defendant sufficient to authorize a finding that plaintiff was estopped? We are clearly of the opinion that it was not. There was evidence submitted by the defendant which would have authorized the jury to find that, some two months prior to the purchase of the land by defendant from the plaintiff's husband, the plaintiff told the defendant's son, while he was inspecting the land in question, that she had no title to or interest in it, but that it belonged to her husband, and he, alone, had the right to sell it; that defendant's son informed him of these declarations made by plaintiff. But there was no evidence that the defendant's son was acting as the agent of his father, the defendant, when such representations were made by the plaintiff. The son, in testifying about the inspection of the land, when the alleged representations of the plaintiff were made, said: "I just took a notion to come and see if I could find a better place than where we was at, and find land cheaper; come of my own accord, and was looking at the land of my own accord." And there was no evidence that the defendant in purchasing the land relied and acted upon the alleged declarations of the plaintiff, that she had no interest in it, and that defendant did not act upon his own knowledge of or judgment as to the title. It does not appear from the record that the defendant testified in the case. While the plaintiff denied that she made the representations to defendant's son as testified to by him, she did, on cross-examination, testify: "I seen Mr. Kear a time or two when he bought the land, but did not have any conversation with him. I knew he was buying it from my husband. I did not tell him anything about my title. I did not think it was any of my business. I did not tell him anything about title in myself. I don't know that the old man come to see me at all. The first time I saw him was over at my home on the place, talking to my husband and Mr. Whaley. I suppose he was talking about buying the place. That is what I thought. I never said a word about it being mine. I did not think it was any of my affair. John proposed to pay me out of money he got from Mr. Kear the first of the year. He did not pay me anything. I knew he aimed to get the money from Mr. Kear for the land. What he did with the money he got for the land is a question I can't answer. I don't know. He has very little now, I think, and I have got nothing at all. *** I didn't have anything to do with it [the sale of the land] at all. Nobody put me up to bringing this suit at all but myself. I just simply waited so long, kept waiting to get my money from my husband; and, when I...