Brown v. Farkas , 195 Ga. 653 ( 1943 )

1. Where a husband and a wife were living in a state of separation and the wife was suing the husband for divorce and alimony, they could enter into a valid and enforceable contract settling the issue as to alimony. Chapman v. Gray, 8 Ga. 341; McLaren v. McLaren, 33 Ga. Supp. 99; Sumner v. Sumner, 121 Ga. 1 (3) (48 S.E. 727); Watson v. Burnley, 150 Ga. 460 (104 S.E. 220); Gore v. Plair, 173 Ga. 88 (159 S.E. 698); Caudle v. Caudle, 181 Ga. 144 (181 S.E. 669); Hayes v. Hayes, 65 Ga. App. 222 (15 S.E.2d 626).

2. Where such a contract was entered into for the purpose of settling the question of alimony, its meaning and effect should be determined according to the usual rules for the construction of contracts, the cardinal rule being to ascertain the intention of the parties. Code, § 20-702. Compare Hayes v. Hayes, 191 Ga. 237 (11 S.E.2d 764).

3. Where in such case the parties agreed upon a sum of money, "to wit, $1400 payable in monthly installments of $50 per month beginning" on a later date specified, the several installments being represented by negotiable promissory notes payable to the wife and secured by a deed to land, the manifest intention of the parties was to fix a lump sum, for which the husband would be unconditionally liable; and this is true notwithstanding the feature as to installment payments. Accordingly, marriage of the wife to another man after obtaining a divorce would be no defense against payment of the notes, and would not prevent the holder from enforcing payment as provided in the security deed. Melton v. Hubbard, 135 Ga. 128 (68 S.E. 1101); Wise v. Wise, 156 Ga. 459 (2) (119 S.E. 410); Heflinger v. Heflinger, 161 Ga. 867 (6) (132 S.E. 85); McDowell v. Engel, 31 Ga. App. 428 (120 S.E. 674); Narregang v. Narregang, 31 S.D. 459 (139 N.W. 341); Jones v. Jones, 216 Ky. 810 (288 S.W. 737); Spear v. Spear, 158 Md. 672 (149 A. 468).

4. While the decisions in Buffington v. Cook, 147 Ga. 681 (95 S.E. 214), by five Justices, and White v. Murden, 190 Ga. 536 (9 S.E.2d 745), by four Justices, dealing with decrees for alimony, did not expressly rule upon the significance or effect of the lump sum awards, yet if they are in conflict with what is here ruled as to the effect of a contractual lump-sum settlement, they will not be followed as to such matter. The present case is controlled in principle by the unanimous ruling in Melton v. Hubbard, 135 Ga. 128 (supra), that, "In such an agreement where the husband promises to pay a lump sum for the wife's support, payable in installments, and the wife dies before all the installments are paid, her executor may sue for the unpaid installments as they severally mature."

5. The conclusion above stated accords with the decision in Melton v. Hubbard, 144 Ga. 18 (85 S.E. 1016), where it was shown that the wife elected to abandon the contract as to alimony, and it was held that in such case the contract would not be enforceable by her executrix after her death.

6. Under the above rulings, the judge did not err in refusing an interlocutory injunction to restrain the transferee of the notes from exercising the power of sale contained in the security deed.

Judgment affirmed. All the Justices concur.

No. 14414. APRIL 13, 1943. Mrs. Gladys Reynolds Brown filed suit for divorce and temporary and permanent alimony against Mercer Brown. On July 20, 1941, while this action was pending, the parties entered into the following agreement:

"Whereas there is now pending in Dougherty County superior court a suit for temporary and permanent alimony, instituted by Mrs. Gladys Reynolds Brown against Mercer Brown; and whereas there are no children as the issue of the marriage between the parties; and whereas the parties have this day reached an agreement in full settlement and satisfaction of temporary and permanent alimony claimed by plaintiff in the above-stated case, as set forth hereinafter: Wherefore the parties do hereby agree as follows:

"(1) That defendant, Mercer Brown, for and in consideration of the full settlement of all temporary and permanent alimony claimed by or due to the plaintiff, is this day executing to her a security deed over [described property], to secure the payment of the sum agreed upon as temporary and permanent alimony, to wit, $1400 payable in monthly installments of $50 per month beginning September 1, 1941, which installments the said Mercer Brown agrees faithfully to pay on due dates.

"(2) In consideration of the execution of said security deed and the $50 notes secured thereby totaling said $1400, plaintiff, Mrs. Gladys Reynolds Brown, does hereby agree that said security deed and notes secured thereby (when paid) are accepted by her in full settlement, according and satisfaction of all of her claims against the said Mercer Brown (her husband) both as to temporary and permanent alimony." The security deed and notes were executed on the same date as the contract. The notes were in negotiable form, payable to the order of Mrs. Brown.

Thereafter, on March 16, 1942, a decree of total divorce was rendered. It contained no provision as to alimony, and did not refer to the foregoing contract. On May 2, 1942, Mrs. Brown married A. C. Knight.

Brown paid the amounts due under the contract through the month of April, 1942, but failed to make further payments.

On August 10, 1942, Leonard Farkas, as holder of the remaining notes, filed suit against Brown in the city court of Albany, seeking judgment for the amount remaining unpaid on the notes, and a special lien on the property described in the security deed. The petition alleged that Farkas was "an innocent purchaser of said notes, for value, he having purchased the notes on July 30, 1941."

Brown, by answer and demurrer, presented the contention that by reason of the marriage of Mrs. Brown he was relieved of further liability under the contract and notes sued on. Ground 4 of this demurrer asserted that "the obligations declared upon are null and void as against this defendant, under the decision of the Supreme Court of Georgia in the case of White v. Murden, 190 Ga. page 536 [supra]." The plaintiff demurred generally to the defendant's answer. The court overruled the demurrer to the petition, and sustained the demurrer to the answer. To these rulings the defendant excepted pendente lite.

After the above rulings on demurrer, the plaintiff, Farkas, began advertising the property described in the security deed for sale on the first Tuesday in November, 1942, under a power therein contained. On October 12, 1942, Brown presented to the judge of the superior court a petition against Farkas, in which he alleged the facts stated above, and prayed: "(a) That the sale of said property be enjoined pending a determination of the question of liability or non-liability of this plaintiff to the defendant in the case now pending in the city court of Albany; (b) or that in lieu thereof the said case now pending in said city court be enjoined from proceeding further pending a decision of plaintiff's rights under this petition;" for process and general relief. Copies of the pleadings in the city-court suit were attached as exhibits to the petition. The petition was sanctioned, and an interlocutory hearing was ordered. At this hearing, the defendant admitted the allegations of paragraph 2 of the petition, that "the said Mrs. Brown obtained a divorce in said case from the plaintiff at the March term, 1942, and on May 2, 1942, she married A. C. Knight of Albany, Georgia, who is a very wealthy man, well able to support her, and much more able to support her than defendant." The plaintiff introduced the original pleadings in the city court, and "said case was then submitted upon the pleadings in said case, said admission of the defendant, and said evidence." On October 31, 1942, the judge passed an order denying an interlocutory injunction. The plaintiff excepted. The defendant demurred to the petition, but the demurrer was not ruled on.