Zimmer v. Dansby

• Decision Date: 31 January 1876
• Citation: 56 Ga. 80
• Parties: Valentine Zimmer, plaintiff in error. v. William F. Dansby,defendant in error.
• Court: Georgia Supreme Court

56 Ga. 80

Valentine Zimmer, plaintiff in error. v. William F. Dansby, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Husband and wife. Levy and sale. Debtor and creditor. Before Judge Buchanan. Troup Superior Court. May Term, 1875.

Reported in the opinion.

B. H. Bigham; T. H. Whitaker, for plaintiff in error.

Ferrell & Longley, for defendant.

Jackson, Judge.

The defendant obtained judgment against Joseph Sanders on the 22d of May, 1866, and the execution issued thereon was levied upon a tract of land which Dansby claimed. On *the trial of this claim, plaintiff in fi. fa. proved possession in Sanders from 1860 up to judgment, and since, until within two or three years of the trial, and introduced a deed from Johnson to him, dated 11th of July, 1860. Claimant showed a deed to him from Sanders and wife dated 19th day of November, 1870, made by the approval of the ordinary, and proceedings before the ordinary showing that the land had beenset apart as a homestead to Sanders on his application the year before; also a deed from Sanders to his wife, dated the 4th of September, 1866, and recorded that day; and proved by Sanders and wife that some money which the wife inherited in Alabama paid for the land; and further showed that this money was her separate estate by the law of Alabama. On this state of facts the court charged that if the jury believed that the land in question was paid for by the money of the wife, acquired as her separate estate in Alabama, the land was not subject, and that the deed so made by husband and wife, of the homestead, conveyed the wife\'s title to claimant; and declined to charge that if plaintiff credited defendant in fi. fa., bona Me, believing this property to be defendant\'s, without any notice of the wife\'s equity or trust, then the land is subject. The jury found the land not subject; the plaintiff moved for a new trial on the above charge and refusal to charge; the court refused to grant it, and this is the error assigned.

This debt was created prior to the constitution of 1868. Therefore no right against the judgment vested in the husband and wife by the homestead. If it had vested, the sale was illegal under the ruling of this court in Roberts and wife v. Trammell, page 383, and claimant acquired no title. The homestead is therefore out of the question, and makes the case no better or worse for either side. The wife, however, signed the deed; the court below held that she conveyed thereby whatever title she had, and the claimant stands in her shoes and is subrogated to her rights. Suppose that this is a correct view of the law in respect to the rights of the claimant against her, and that she would be estopped in a contest with him, *and that he acquired all her title, then the question narrows to this point, what is her title against this judgment? The judgment was rendered in May, 1866; her husband's deed to her and its record was in September, 1866; and that judgment operated as a lien on his property from its date. The legal title to this property was in him, the husband, at the date of the judgment; the deed was to him alone, and the possession was in him; there was no record of the wife's title or of any equity in her when he got the credit or when the judgment was rendered, therefore there was no constructive notice to this judgment creditor, and the record discloses no actual notice to him of this equity of the wife. It is therefore a secret equity arising from a secret trust, so...