Sumner v. Sumner
| Decision Date | 15 October 1904 |
| Citation | 48 S.E. 727,121 Ga. 1 |
| Parties | SUMNER v. SUMNER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. In order for exceptions pendente lite to be passed upon by the Supreme Court, error must be distinctly assigned thereon either in the bill of exceptions or at the hearing of the case in that court.
2. "The denial in vacation of a motion to dismiss a motion for a new trial is cause for a separate and independent writ of error; and if none is sued out, and no exceptions are entered pendente lite, it is too late, after the expiration of 30 days from the date of the decision, to bring the question to this court."
3. A contract between husband and wife, made with the intention of promoting a dissolution of the marriage relation, is contrary to public policy and void; but a contract providing for the wife's maintenance, made after a separation has taken place, or immediately before a separation which had already been determined upon, is valid and enforceable.
4. Gross inadequacy of consideration in a contract, when coupled with other circumstances indicative of fraud, will authorize the setting aside of the contract. But the mere fact that under a contract executed by a husband in satisfaction of his wife's claim for alimony she received property the value of which was small when compared with that of his entire property, and less than she might have been legally entitled to, though sufficiently valuable to provide a support for her, will not be sufficient to establish the existence of fraud.
5. A contract of the nature above indicated will not, at the instance of the wife, be set aside, when no fraud was used by the husband to induce her to accept it, or to prevent her from acquainting herself with its terms, or from ascertaining her legal rights in the premises.
6. The defense of res adjudicata cannot be taken advantage of unless specially pleaded.
7. Where the question whether a contract between a husband and wife, who have separated, made for the purpose of providing a support for her, is void for fraud, depends upon a question of fact, or upon questions of law and fact, the finding of the trial judge, on the hearing of an application for temporary alimony, that the contract is void, is not res adjudicata at the trial of the suit for permanent alimony. It would be otherwise if the decision had been based upon a question of law, unmixed with any question of fact.
Error from Superior Court, Worth County; W. N. Spence, Judge.
Action by S. J. Sumner against J. L. Sumner. Judgment for plaintiff and both parties bring error. Reversed on exceptions of J. L Sumner, and writ of error by S. J. Sumner dismissed.
See 43 S.E. 57; 45 S.E. 315.
Jesse W. Walters, J. J. Forehand, and Frank Park, for plaintiff.
Sam. S Bennet and Claude Payton, for defendant.
FISH, P.J. (after stating the foregoing facts).
1. The order allowing additional attorney's fees cannot be reviewed, because no sufficient assignment of error has been made thereon. Sumner's bill of exceptions contains merely a recital that such an order was passed and that exceptions pendente lite thereto were filed, but does not assign error either on the order or the exceptions pendente lite. Nor was any assignment of error filed in this court after the case reached here, as might have been done. Hardee v. Griner, 80 Ga. 559, 7 S.E. 102. Under such circumstances the exceptions pendente lite cannot be considered. Branham v. State, 96 Ga. 307, 22 S.E. 957.
2. A motion was made to dismiss the bill of exceptions of Mrs. Sumner, because it was sued out more than 30 days after the ruling complained of. The term at which the case was tried adjourned on November 7, 1903. The motion for a new trial and the motion to dismiss it were overruled on January 4, 1904, in vacation. Mrs. Sumner's bill of exceptions, assigning error upon the overruling of the motion to dismiss, was certified on February 12, 1904. This bill of exceptions is denominated by the plaintiff in error therein a "cross-bill," but it assigns error upon a judgment which is subject-matter for an independent or main bill of exceptions. So treated, it should have been sued out within 30 days after the judgment complained of was rendered. This conclusion inevitably results from the decision in Pergason v. Etcherson, 91 Ga. 785, 18 S.E. 29, where it was ruled: "The denial in vacation of a motion to dismiss a motion for a new trial is cause for a separate and independent writ of error, and if none is sued out, and no exceptions are entered pendente lite, it is too late, after the expiration of 30 days from the date of the decision, to bring the question to this court."
Counsel for Mrs. Sumner insist that this decision is unsound, and ask leave to review it. We think, however, that the ruling is correct, and we therefore decline to overrule it. If the decision had been rendered as claimed by Mrs. Sumner, it would have been a final disposition of the case, and, under the express terms of the statute, exception could have been taken by means of an independent bill. Civ. Code 1895, § 5526. It is also insisted that the decision cited is in conflict with the earlier ruling in Harris v. Central Railroad, 78 Ga. 525, 3 S.E. 355, wherein it was held that a defendant could by cross-bill of exceptions complain of the allowance of an amendment more than 60 days before the cross-bill was presented to the judge; the cross-bill having been tendered and certified at or near the time when the main bill was certified. There is a very clear distinction between the two cases. The allowance of an amendment is not a final judgment; nor would a judgment disallowing it be final. Hence, if the party complaining of the allowance of the amendment is successful in obtaining a final judgment in the case, he can complain of the ruling against him only by a cross-bill, and he cannot sue out a cross-bill until a main bill is tendered by the adverse party and certified by the judge. The motion to dismiss Mrs. Sumner's bill of exceptions must be sustained.
3. The mere fact that the deed from Sumner to his wife was executed pursuant to a separation and to provide a separate maintenance for the wife did not render it invalid. "A contract between husband and wife, made with the intention of promoting a dissolution of the marriage relation," is contrary to public policy and void. Birch v. Anthony, 109 Ga. 349, 34 S.E. 561, 77 Am.St.Rep. 379. But a contract providing for the wife's maintenance, made after a separation has taken place, or immediately before a separation which has already been determined upon, is valid and enforceable. Chapman v. Gray, 8 Ga. 341; McLaren v. McLaren, 33 Ga. Supp. 99; 1 Bish. Mar., Div. & Sep. § 1278; Fox v. Davis, 113 Mass. 255, 18 Am.Rep. 476; Randall v. Randall, 37 Mich. 563; Gaines' Adm'x v. Poor, 60 Ky. 503, 79 Am.Dec. 559; Hutton v. Hutton's Adm'r, 3 Pa. 100. Formerly the practice was to make such settlements through the medium of trustees. There are authorities, however, that a trustee was not necessary, even at common law. See citations in 3 Pa. 104. But, be this as it may, no trustee has been necessary in this state since the passage of the married woman's act of 1866 (Acts 1866, p. 146). An agreement between husband and wife to live separate and apart is illegal; and if a conveyance to the wife be founded upon such a consideration, it too will be void; but not if it be the result of a separation, instead of being made to promote it.
4. The evidence was voluminous. Much of it was irrelevant and unnecessary. Mrs. Sumner was about 56 years of age at the time of the separation, and had been married 35 or 36 years. It is inferable from the record that she was not a woman of great culture, but the evidence shows that she had ample intelligence to understand the nature and terms of the contract executed by her husband. Indeed, she seems, during the negotiations leading up to the final contract, to have been fully alive to her interests and to have exhibited business ability and judgment. The fact that her husband afterwards brought a suit for divorce has no bearing upon the issues involved in the case, which relate solely to the question of alimony. The suit for divorce could in no sense be construed as a repudiation of the settlement, nor could the husband have repudiated it. It had been fully executed prior to that time, and nothing he could do would have the effect of setting it aside. It was admitted that the real consideration of the deed was Mrs. Sumner's claim for alimony. Sumner's written agreement with reference to personalty was to give her certain live stock, a buggy, a wagon, and farm products. There seems also to have been verbal agreements as to other personalty. The evidence required a finding that all of these agreements were substantially complied with. She did not receive 100 sheep which he agreed to give her, but she accepted $100 instead. She accepted and used all of this personal property, and consumed some of the farm products. There was evidence of an offer to surrender to Sumner, before the trial, the personal property unconsumed and the land described in the deed. The agreement in reference to the land was to "make deed of conveyance" to certain land to Mrs. Sumner. The deed gave to her a life estate only in some 690 acres of land from 90 to 125 acres of which was, according to the testimony, cleared and in cultivation. Mrs. Sumner herself testified that, had it been worked properly, it would have afforded her a support. Her youngest child was 20 years old at the time of the trial, and amply able to support himself. It is therefore apparent that the consideration was not so inadequate as to raise a presumption of fraud. Gross inadequacy of consideration, joined with other circumstances,...
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