Wood v. Lovelady

• Decision Date: 14 April 1933
• Docket Number: 9198.
• Citation: 169 S.E. 93,176 Ga. 866
• Parties: WOOD v. LOVELADY et ux.
• Court: Georgia Supreme Court

169 S.E. 93

176 Ga. 866

WOOD v. LOVELADY et ux.

No. 9198.

Supreme Court of Georgia

April 14, 1933

Syllabus by the Court.

In suit to subject wife's property to claims of husband's creditors, on theory that wife was estopped to assert title to property because she had allowed husband to retain record title, evidence sustained verdict for defendants.

In suit to subject wife's property to claims of husband's creditors, instruction that mere fact husband returned property for taxes and insurance thereon was in his name would not authorize recovery, unless creditors relied on such facts in extending credit to husband, held not error.

Where court excluded evidence "for the present" but stated that, if counsel had authority, he would hear it later, and evidence was not thereafter offered, exclusion of evidence held not error.

1. This was a suit against a husband and wife, by a trustee of the bankrupt estate of the husband, to subject to the claims of the creditors of the husband a residence and lot originally conveyed to the husband by a deed which was duly recorded but later conveyed by the husband to the wife by a deed which was not recorded for several years. The petition alleged that the creditors extended credit to the husband upon the faith of his control and apparent ownership of the property during the period when the record title was in himself notwithstanding the wife at the time was the holder of the unrecorded deed from her husband, the action being founded upon an alleged estoppel against the wife to assert title to the property. Held, that the evidence supported a verdict in favor of the defendants, and that the court did not err in refusing to grant a new trial on the general grounds.

2. The court did not err in charging the jury that the facts that the property was returned for taxation and was insured in the name of the husband would not of themselves be sufficient to authorize a recovery by the plaintiff, unless some one or more of the creditors represented by the plaintiff knew of such facts and relied upon them in extending credit to the husband.

3. Where the court made a provisional ruling upon the admissibility of evidence, that he would "exclude it for the present," but would be glad to hear from counsel later as to its admissibility, it was not incumbent upon the judge thereafter to recall the matter and admit the evidence on his own motion, without further action on the part of the attorney who had sought to have the evidence admitted. The assignment of error based upon these facts shows no cause for reversal.

4. Upon a consideration of the entire charge, it does not appear that the excerpt relating to possession by the wife was calculated to mislead and confuse the jury, upon the ground that it could have had reference to the date of filing the suit, when the deed to the wife had been duly recorded, and not to the times of the extension of the credit when the deed was not recorded.

Error from Superior Court, Cherokee County; J. H. Hawkins, Judge.

Suit by J. Hines Wood, as trustee for the bankrupt estate of A. J Lovelady, against A. J. Lovelady and wife. Judgment for defendants, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

A. J Henderson and Roberts & Vandiviere, all of Canton, for plaintiff in error.

Roscoe Pickett, of Jasper, and Howell Brooke, of Canton, for defendants in error.

BELL Justice.

J. Hines Wood, as trustee for the bankrupt estate of A. J. Lovelady, brought a suit in equity against Lovelady and his wife, to subject to the claims of creditors represented by the plaintiff a house and lot claimed by Mrs. Lovelady in virtue of a deed executed to her by her husband several years before he was adjudicated a bankrupt, but not recorded until after the debts in favor of such creditors were created. When the credits were extended, the record title was in the husband; and the petition alleged that credit was extended to him by the various creditors upon the faith of his apparent ownership of the property. The petition prayed that Mrs. Lovelady be held and adjudged to be estopped from setting up any claim to the property, and that it be administered in bankruptcy as a part of the estate of A. J. Lovelady. The defendants filed an answer alleging that the title was bona fide in Mrs. Lovelady, and denying that she had been guilty of any conduct such as would raise an estoppel against her. The trial resulted in a verdict in favor of the defendants. The plaintiff excepted to the overruling of his motion for a new trial, based upon the general grounds and several special grounds.

1. The evidence authorized the verdict for the defendants. According to their testimony, the property in question was purchased by Mrs. Lovelady in 1919, at which time she paid a part of the purchase money in cash and gave notes for the balance. A bond for title was executed and delivered to her as the purchaser and obligee, and the remainder of the purchase money was finally paid to the seller by A. J. Lovelady in part satisfaction of an indebtedness due by him to his wife, represented by notes which were in evidence. These notes were in existence at the time the payments were made by A. J. Lovelady, and credits for these payments were duly entered thereon. The deed made in pursuance of the bond for title was executed on June 7, 1920, not to the obligee, Mrs. Lovelady, but to her husband, A. J. Lovelady. This deed was recorded on December 31, 1920. Mrs. Lovelady testified that, as soon as she discovered that the deed had been made to her husband, she called his attention to the fact that the conveyance should have been made to herself, and that he then (January 8, 1921) executed a deed of conveyance to her, as she "had paid for the property." Although this deed recited a consideration of love and affection, the evidence authorized the inference that the transactions between the husband and the wife were bona fide, and that the legal title was rightfully placed in Mrs. Lovelady. This deed was not recorded until November 20, 1930, and A. J. Lovelady was adjudicated a bankrupt on January 30, 1931.

The claims of only two creditors were involved by the evidence. One was a claim of W. T. Poole based on notes executed by A. J. Lovelady for money borrowed in November, 1921, and June, 1922. The other was an account in favor of Aycock-Robinson-Smith Company for merchandise sold and delivered to A. J. Lovelady between September, 1929, and November 20, 1930, the date when the deed to Mrs. Lovelady was recorded. During the several years which intervened between the date of the execution of this deed and the date of its record, Mr. and Mrs. Lovelady occupied the house and lot as a residence, and the record title stood in the name of the husband. In the meantime he returned the property for taxation and procured fire insurance thereon, both in his own name. Mrs. Lovelady testified that she did not know that the property was carried on the tax books in the name of her husband, or that the insurance policies were issued to him as owner. She requested him to attend to these matters for her, and allowed him a credit of $200 annually upon the note which she held against him, in consideration of the combined expense for taxes and insurance, upon his estimate and statement that this was the approximate amount which he expended for these purposes. The evidence authorized the inference that her failure to have the deed from her husband to herself promptly recorded was due to neglect or oversight.

W. T. Poole testified as follows: "At the time I advanced or loaned the money represented by these two notes, I knew where Mr. Lovelady lived, where his residence was, in the town of Ball Ground. That was a nice home. In my opinion that home at that time was worth $10,000. I thought that home place was the property of Mr. Lovelady. He lived in the house at that time, and he has lived in the house always since that time. I did not know he didn't own this property at the time I made this loan. From the fact that he lived in the property and continued to live in it for a number of years, it was my opinion that the property belonged to him, because I should have thought if it didn't they would have told me that it wasn't. Had I known that Mrs. Lovelady owned this property at that time I would not have loaned him this money." There was no evidence that this creditor examined the deed records, or caused them to be examined, for the purpose of investigating the record title. He had no information as to what the public records might have shown, and was not misled by the failure of Mrs. Lovelady to have her deed recorded; nor does it appear that he had any knowledge of the facts that the property was returned for taxation and insured in the name of the husband.

J. C Aycock, credit manager of Aycock-Robinson-Smith Company, testified that he was influenced to extend the credit for his company by a report from R. G. Dun & Co. as to the financial ability of A. J. Lovelady. What purported to be a statement made by Lovelady to Dun & Co. was introduced in evidence, and contained the language "Home-- Ball Ground, $15,000." This statement was signed "A. J. Lovelady & Co. By Ella Holcombe." J. E. Mardre testified that, while employed by R. G. Dun & Co. as a traveling...