Venable v. Wcraig

• Decision Date: 31 July 1871
• Parties: DELILAH M. VENABLE, plaintiff in error. v. JAMES W.CRAIG, defendant in error.
• Court: Georgia Supreme Court

44 Ga. 437

DELILAH M. VENABLE, plaintiff in error. v. JAMES W.CRAIG, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Judgments binding on parties and privies. Lis pendens. Divorce. Before Judge Hopkins. Fulton Superior Court. April Term, 1871.

Craig's bill against Mrs. Venable made this case: On the 6th of August, 1866, he having lately moved into this State and settled in Fulton county, bought, at public acution sale, lot number thirty-six, ton the west side of Marietta street, in Atlanta, Georgia, con-

aining a half acre, at $2,800 00, cash, *and paid the auctioneer for it, and took a deed therefore from John Venable. The property had been advertised for sale, in a public gazette in Atlanta. He took possession, and built upon it a dwelling and store, etc., at a cost of $5,300 00. About twelve months afterward, he heard that Venable's wife claimed that said property had been set apart to her as permanent alimony, when she was divorced from Venable. Before this, he did not know that Venable had a wife, nor anything of their separation, etc. He then got from Jackson county, Georgia, a copy of a record, showing the following facts: In February,, 1864, Mrs. Venable sued John Venable for a divorce, because of adultery, and he was served. She claimed no alimony, nor did she file any schedule of property owned by Venable at the time of separation. Venable pleaded not guilty, and condonation, and claimed a divorce from her for cruel treatment. In August, 1866, a jury gave her a first verdict of divorce a vinculo matrimonii. During August Term, 1866, of said Court, or afterwards, she made out and swore to a schedule of property, purporting to give a list of the property owned by Venable in 1863, when they separated. There was therein realty, estimated at $5,800 00, and personalty, estimated at $2,775 00. Of this realty was "one lot in the city of Atlanta, worth, $5,000 00.'' This is the lot which Craig bought as aforesaid. It does not appear when said schedule was filed in the Clerk's office. In August, 1867, the jury rendered a verdict finally divorcing her from said Venable, giving to her during her life, and to the children after her death, all the property mentioned in the schedule, and recommending that Venable be allowed to marry again. The Court entered judgment accordingly, and ordered a writ of possession to issue according to law. This judgment excepted any part of the land which might be in possession of any bona fide purchaser, in payment of a debt due before the separation. The writ of possession is now held by the sheriff, and, under it, he is about to turn Craig out of possession of said land. Venable told Craig that he used *said $2,800 00 in paying his debts, existing at the time of the separation.

Besides, on the 14th of October, 1863, Mrs. Venable had presented to Venable a deed of separation, in which he gave her various specified property, in lieu of any alimony, to which she acceded, in writing. Afterwards, she changed her mind, and she and he entered into a written contract, by which he gave to a trustee, for her, a negro man and $3,000 00, in consideration of which she released all claims upon him in futuro. She had not then sued him. This paper was sealed and recorded in said county of Jackson, on the 18th of August, 1864. The object of the divorce suit at first, was simply to obtain a divorce. The schedule was an after-thought. Venable had moved off to a considerable distance, and because of said provision, already made, supposed there would be no claim of alimony in said case. Or, she and her husband colluded to let him have a divorce also, and, therefore, he made no resistance as to the matter of alimony. This collusion was a fraud upon Craig, because he was a bona fide purchaser, for value, without notice of any of the facts. Because of the time and occasion of filing said schedule, and its vagueness, and because of said fraud, he prayed for an injunction against said writ of possession, etc. He prayed that she and Venable answer, etc. Venable was not served. She answered that she did not make the contract for a provision in lieu of alimony, and that Adams, the trustee, never signed it; that she did file a schedule of property when the suit was begun; that the paper alluded to by Craig was but an established copy of the original, which had been lost, and, not seeing said advertisement, or knowing of the sale, denied all fraud or collusion. She said her suit was notice to the world, and, therefore, the property was hers, by law, and worth $700 00 per annum for rent, and that Craig must look to Venable upon his warranty.

Upon the trial, (which was before the Judge only, by consent,) Craig testified to the bona fides of his purchase, his *want of notice, his improvements, etc.. as he had averred, and that he never heard of the agreement as to alimony till after the litigation began. His counsel then read in evidence said agreement. It purported to be a deed from Venable to one Adams, because of permanent separation from his wife, conveying to him, as trustee, a negro man and $3,000 00 in cash, for her and the childrens\' support during her life, and at her death to the children, and she, in consideration of the premises, released him from all future claim for support for all time to come. It contained a covenant, by Adams, to hold the said property as such trustee. It was not signed by Adams, was signed and sealed by her and Venable, and was witnessed by one Thompson and a Justice of the Peace named Randolph. It was dated the 4th of November, 1863, and was recorded in Jackson county on the 4th of August, 1864. Here Craig rested his cause.

Mrs. Venable testified that Thompson and Randolph brought said paper to her to sign several times before she signed it; that she did not sign it till February, 1864. Thompson was her son-in-law. He came to Adams' where she was staying, told her it was a paper "fixed up for Court, " and she must sign it; she said he was deceiving her, but he said he was not, and after about a half hour's hesitation she signed it without knowing what was in it, not having read it nor heard it read, nor heard its contents mentioned. She supposed it might be some paper drawn by her attorney, Silman. In October, before signing the paper, a negro man was sent to her to work, he was sick, stayed but two days, and she sent him back. No money was paid under said contract. They were married in 1841, and have five children, age seven, ten, fifteen, twenty-four and twenty-seven years, respectively. She denied any collusion with Venable, or consent that he might be relieved from disability to marry. She said he had proposed to give her property in lieu of alimony, but she had refused. She denied seeing said advertisementor knowing anything of the sale till after her final divorce. * Adams testified that he is Venable\'s half-brother; that he came in just after Mrs. Venable had signed said paper, and was requested to sign it, but refused, saying he would have nothingto do with the matter. He thinks it was stated that it was the same paper which her attorney had brought to her to sign, that paper he had refused to sign because he thought the provision for her was insufficient. He said Venable paid him no money nor property, that the negro man was sent to his house in October before, in his absence, and upon his return he took him back to Venable.

Thompson testified that in February, 1864, Venable persuaded him to take said paper to Mrs. Venable to sign; that he did not read it, nor does he believe Mrs. Venable know its contents; but while she obstinately refused at first to sign it, said she ought to be at home with her husband, and as he, Thompson, believed, signed it, thinking it might result in her returning home. Adams refused to sign it for "various reasons."

Mr. Marler testified that Venable employed him to defend said suit, in 1865. He advised him to make the best compromise he could, as to alimony, and not to defend the suit. His property in Jefferson is claimed by Thompson. He has heard Venable speak of his Atlanta property. When the case came up for trial the schedule was lost, and Silman, her attorney, presented the one mentioned in the bill, saying it was a copy of the lost one, except that the Confederate valuation had been reduced to United States currency, and that it was sworn to because it was possibly not an exact copy of the lost one. Marler, believing it was a correct copy, except as aforesaid, consented that it might be established in lieu of the original, and that was done.

Mr. Silman testified that he filed the libel for divorce, with a sworn schedule attached to it, in which schedule was a house and lot in Atlanta. The papers were lost and he established copies; to the copy schedule omitted the slaves and Confederate money mentioned in the first schedule, and *changed the value of the other items by putting them in United States currency. This was sworn to by Mrs. Venable, and was established, by consent of Venable's attorney, as a copy of the original. Before filing the libel, he presented to Venable a list of items of property which Mrs. Venable desired to have set apart for her, and he agreed to all but one item; he objected to giving her a negro woman and family, saying they would be an expense to her. He indorsed upon the paper his willingness to comply, but she changed her mind before the matter was consummated. He drew a paper for her to sign, relinquishing claim of alimony in consideration of property to be settled upon her, and took it to her, but she refused to sign it and he had no more to do with the negotiations. He thought Venable's said offer was reasonable, considering his pecuniary condition. The house and lot, and personalty perhaps, in Jefferson, were sold under fi. fa. against Venable, and said Thompson bought them. It was never understood that the recorded settlement stopped claim for alimony, or that h...