Vizard v. Moody

• Court: Georgia Supreme Court
• Writing for the Court: CANDLER, J.
• Citation: Vizard v. Moody, 119 Ga. 918, 47 S.E. 348 (Ga. 1904)
• Decision Date: 31 March 1904
• Parties: VIZARD v. MOODY.

47 S.E. 348

119 Ga. 918

VIZARD v. MOODY.

Supreme Court of Georgia

March 31, 1904

Syllabus by the Court.

1. Where the defendant in an action of ejectment admits in his plea the execution by him of an instrument which forms a part of the plaintiff's abstract of title, it is not a good objection to the admission of the instrument in evidence that its execution has not been proved. The same principle governs as to proof of the execution of a deed when the maker of the deed appears in court, and testifies that he signed the instrument and that the deed is his.

2. In this state a married woman may engage in business as the partner of her husband, and may pledge her separate property for the payment of the partnership debts.

3. A married woman who buys property which is incumbered may assume the payment of the incumbrance in order to secure a clear title to the property, and she will be bound by such an assumption of the lien on the property.

4. A deed to lands located in Georgia was executed in Mississippi in January, 1900, but was attested by only one witness. In February, 1901, the maker acknowledged the deed in Mississippi before two witnesses, one of whom was a notary public, who attached his seal to his attestation. Held, that the instrument was entitled to record in Georgia, and was admissible in evidence in a trial involving title to the land conveyed.

5. Where the maker of a deed of trust to secure a debt expressly contracts that, in the event of default in the payment of the debt, the trustee may sell the land at public outcry before the door of the courthouse of a named county in another state, the sale of the land in such state in compliance with the terms of the trust deed is not void; and this is true though the instrument be in the nature of a mortgage, and a sale thereunder quasi judicial in character.

6. Where the execution of a deed or mortgage has been admitted or proved, it is not a ground to exclude it from evidence that it is not under seal.

7. Where a deed of trust to secure a debt directed that, in the event of default in the payment of the debt, the trustee should sell the property, "after advertising said sale for ten days by publication in some newspaper published in" a named county, advertisement in a weekly paper in the county named for three successive issues next preceding the date of the sale was a compliance with the direction; it appearing that the first advertisement was more than 10 days prior to the date of the sale.

8. The letters excluded from evidence were admissible as throwing light on the real nature of the transaction between the parties which gave rise to the action of ejectment; and there was before the court sufficient evidence that the writings were executed by the defendant to enable the jury, by a comparison of signatures, to pass upon the issue raised by the contention as to the execution.

Error from Superior Court, Glynn County; T. A. Parker, Judge.

Action by A. Vizard against S. A. Moody. Judgment for defendant, and plaintiff brings error. Reversed.

Atkinson & Dunwoody, for plaintiff in error.

Kay Bennet & Conyers and Gale & Butts, for defendant in error.

CANDLER J.

This was a suit in ejectment and for mesne profits. Different branches of the same litigation have been before this court twice (115 Ga. 491, 41 S.E. 997; 117 Ga. 67, 43 S.E. 426) but the questions now presented are entirely different from those made on the former trials. The plaintiff, a nonresident, claimed title under two instruments--one a deed of trust in the nature of a mortgage, signed by the defendant and her husband, D. H. Moody, purporting to convey the property in dispute and other property, some of which was located in Alabama and some in Mississippi, to Mason as trustee for the plaintiff, to secure an indebtedness therein set out; and the other a deed from Woods, substituted trustee appointed in accordance with the terms of the instrument first mentioned to succeed Mason, resigned, conveying the property to the plaintiff. Both these instruments were, on objections which will hereafter be set out, ruled out by the court, as was also certain other evidence offered by the plaintiff. The court awarded a nonsuit, and to the ruling, as well as to the rejection of the evidence referred to, the plaintiff excepted.

1-3. The objections offered to the introduction of the conveyance from the defendant to Mason, trustee, were: (1) That the execution of the instrument was not proved; (2) that it shows on its face that it is a deed or mortgage upon the estate of a married woman, and given as security for the debt of another; and (3) that it recites the assumption of the debt of one Walters and his wife, but does not show upon what consideration such debt was assumed. We are satisfied that none of these objections is meritorious. It is a complete answer to the first that in her plea the defendant admitted the execution of the instrument for the purposes therein set out; and this averment in her plea was invoked on the trial by the plaintiff. See Civ. Code 1895, § 5188; Wood v. Isom, 68 Ga. 417. Nor is there any merit in the second objection set out above. It appears that Walters and wife were operating a turpentine farm in Mississippi, and were indebted to the plaintiff, Vizard, who was their factor, to the amount of more than $3,000. The defendant and her husband, desiring to purchase this farm, agreed to assume the debt of the Walterses to Vizard, and accordingly the turpentine farm and its appurtenances were turned over by the Walterses to a partnership composed of the defendant, her husband, D. H. Moody, and her son, J. D. Moody, doing business under the firm name of S. A. Moody & Co. It was also agreed that Vizard should advance to the Moodys $2,000 additional at stated intervals; and as evidence of the assumption by the Moodys of the debt of the Walterses, and of the contemplated advance of the additional sums by Vizard, notes were given by the Moodys to Vizard for $5,000; and as security for this sum, and for such further advances as might be made, the deed of trust under consideration was executed. This instrument authorized the trustee, upon default in payment of the debt to secure which it was given, to sell the property therein described, after first advertising the sale for 10 days by publication in some newspaper published in Jackson county, Miss., the sale to be made at public outcry before the courthouse of that county in the town of Scranton. There was evidence from which the jury could have found that the debt of the Walterses which was assumed by the defendant and her husband was a lien on the property sold to her firm. This court has repeatedly held that a married woman may be a partner in business with her husband, and that in such event her individual property is liable for the partnership debts. Burney v. Savannah Grocery Co., 98 Ga. 711, 25 S.E. 915, 58 Am.St.Rep. 342; Scofield v. Jones, 85 Ga. 816, 11 S.E. 1032; Ellis v. Mills, 99...