Venable v. Craig , 44 Ga. 437 ( 1871 )

McCay, Judge.

1. Section 1720 of the Revised Code is in these words: “After a separation no transfer by the husband of any of the property, except bona fide in payment of preexisting debts, shall pass the title so as to avoid the vesting thereof, according to the final verdict of the jury in the cause.” Unless this section is to have some other meaning than appears upon its face, every purchaser of property from the husband, after the separation, takes the title subject to the final verdict of the jury in the divorce cause. It is said that this meaning is so unreasonable, so contrary to justice and propriety, that it is the duty of the Court, if possible, to give the section a different construction. It is contended that the exception in the section, “except bona fide in payment of pre-existing debts,” furnished a fair opening for such a construction. One little word “ or,” it is insisted, ought to be inserted so as to make the exception read, “ except bona fide, or in payment of the preexisting debts.” This, it is said, would protect bona fide purchasers, without notice of the separation. This class of persons, it is said, are not only entitled to b.e protected upon principles of justice, but are, by another section of the Code, section 3037, declared entitled to it in very broad language, to-wit: “ A bona fide purchaser, for value without notice of equity, will not be interfered with by a Court of equity.” It is said, too, that the broad language of section 1720, if taken literally, works a great hardship on the husband, as under it, though he has a large estate, he can dispose of none of it, not even to obtain the necessaries of life.

To all this it may be replied, that this little word “or ’ would ■ make the whole section of no effect. If the husband may sell “ bona fide,” that is, honestly, in good faith, then the only restriction upon him would be that he could not sell with intent to defraud the wife, and even of this intent the purchaser must have notice. Is it not perfectly apparent that, if the section read thus, the wife would have no protection at all, and that the whole purpose of the provision would fail ? The husband might advertise and sell publicly all he had, or he might quietly dispose of it all. Who could say what was his intent ? How could the wife prevent him ? By bill of injunction ? Could she take the oath required, or would the simple sale, if this were the law, justify the Chancellor in interposing? To make this section protect bona fide purchasers without notice of the separation simply, far other language than this word “or” would make of it is necessary. The ordinary language, as used in other parts of the Code where such a purpose is in view, would have been almost certainly used. The old Lien Act of 1806 was defective in this very particular. It seemed to contemplate this restriction, since it provides that the schedule shall contain the property owned at the time of the separation, and that the jury shall dispose of it by their verdict ; yet there was no prohibition, in terms, against the sale by the husband. This left a painful uncertainty in the law as to this matter, and it was, doubtless, the object of this section to clear up this uncertainty. The words of the section are plain ; the language leads, irresistibly, to the conclusion we have indicated, and any such construction as is contended for would be to interpolate, and put a meaning on the language of the law directly contrary to the plain and natural one. It is not for the Courts to do this. In doubtful cases, when the language is ambiguous, the argument ab inconvenienti may be resorted to, but, when there is no ambiguity, the maxim “ Ita lex seripta est ” is imperative. Nor can we join in the objection which is made to the justice and propriety of this provision. Ve see no other way to protect the wife. When the difficulties between husband and wife have come to the point of separation there is, generally, great bitterness of feeling, and were the property wholly in the power of the husband the wife would- fare but poorly. The old notion that the wife is lost in the husband, and that everything is his, has been largely modified in modern times, and society now recognizes that the property is rather the property of both than of the husband alone. There is, therefore! no injustice in a law which declares that, when they can no longer live together, it shall not be in the power of one to dispose of the property of the community. Nor is there any special hardship on purchasers. Nothing is more common than to .hold even purchasers to the rule of “caveat emptor” Indeed, in almost all cases where a law is founded on public policy, a purchaser buys property subject to it at his peril.

Is not everybody bound to take notice that one is an infant, or that a woman is married ? Why should not everybody be bound to take notice that a man has separated from his wife? The least inquiry in the neighborhood where he resides would almost always discover the fact. One is bound to make such inquiries, to know if there be a lis pendens, or a judgment, or a marriage settlement, and if the Legislature so provides, we see no objection, in furtherance of the public policy of protecting the wife, to putting the fact of separation on the same basis.

It will be noticed that this section of the Code does not make the sale void; it simply says, “ a transfer shall not take place so as to prevent the title from vesting according to the verdict.” The husband may sell subject to the verdict, and if he have sold property for purposes consistent with this policy of the law, to protect the wife, the jury will see to it, in their verdict, that no wrong is done by their decree.

2. The purchaser, as we have said, buys subject to the verdict. He is a privy to it; he stands in the shoes of the husband, and is bound by the verdict. Without doubt, the husband could not set up this agreement after and against the verdict. Supposing it to have been fairly made, and to have conformed to law in every particular, why was it not pleaded and set up as * bar to the verdict granting alimony? Ye have held, over and over again, that a judgment of a Court of competent jurisdiction is binding between the parties and their privies, as to all matters involved in the issue. Was not the x'ight of the wife to alimony one of the chief issues in the divorce trial? If there was fraud and complicity between the husband and wife, by which the rights of this purchaser are affected; if, having fully settled between themselves, in a lawful way, the alimony dispute, they had procured this verdict with a fraudulent purpose, to affect the rights of purchasers, the verdict could, without doubt, be attacked in the proper Court. But it is a fixed rule, that the verdict concludes all parties privy to it, as to all matters involved in it. And this very question, to-wit: what should be the alimony of the wife, and out of what portion of the scheduled property it should be paid, was the very thing in issue, in the property part of the final verdict.

3. If we are right as to the question of the construction of section 1720 of the Code, the husband is under a disability to transfer any of the property after the separation, so as to prevent the vesting of the title according to the verdict. No ¿is pendens is necessary to give notice; the sale is prohibited by law, and everybody is bound to take notice. This disposes of the argument that the schedule does not affirmatively appear, in its present shape, to have been on file at the date of the sale. The proof is that the papers had been lost and a schedule was made out as nearly like the original as possible, and sworn to anew, because the estimated value of the property was changed from Confederate money valuation to a valuation in United States currency. We know of no authority that a ¿is pendens ceases to be notice if the papers be mislaid. Here was, in any event, notice that a suit for divorce was pending, and any one who knew this knew, by the law of the land, that all the property owned at the separation was subject to the final verdict. It was not necessary to see the papers to know this; it followed by operation of law. The,schedule could at any time be amended. Indeed, it need not necessarily be filed with the writ, as, by section 1719, it may be filed afterwards, under the order of the Court. The only actual necessity for looking into the schedule is to determine whether the description is sufficiently plain and definite to enable possession to be given. The schedule purports to be a statement of all the property owned by the husband at the time of the separation. It sets forth a city lot in the city of Atlanta worth $5,000 00. As the husband had but one such lot, it was easy to show that the lot in question is that lot. That is certain which can be made certain. The officer must always, in executing a process, inquire for the lot by its description. If it is by metes and bounds, he must hunt them up; if it is by a statement of the names of the adjoining lot owners, inquiry must be made and acted on. And so here. The record may be looked to for the title of the husband, and inquiry made, as in other cases, to get at the truth.

Judgment reversed.

Warner, Judge, concurred, but furnished no opinion. Loohrane, Chief Justice, furnished no opinion. From the bench he dissented as follows :

While A bought property at public auction, sold as the property of B, and paid therefor a full consideration, and at the time of the sale B and his wife were separated, under section 1720 of the Code, I do not think the title of the husband was so limited as to prevent the sale of the property bona, fide by the mere fact of the separation, or that it was 'the duty of A to inquire into the domestic relations of B, and that the wife’s rights or equities are superior to those of a bona fide purchaser for consideration without notice.

When a divorce suit was filed in 1864, and the schedule sworn to containing the property in controversy was filed after the purchase by A, I hold that such suit was not notice to A of the wife’s claim to the property, and the fact that previous papers in the case had been lost could not operate to effect A with notice of an equity in the wife until after the schedule containing his property was filed.

When the schedule contained the description of the property as one lot in the city of Atlanta, I think the description too indefinite and uncertain as to the property claimed to operate as notice by lis pendens, so as to defeat the title of a bona fide purchase, etc.

When, upon the record, it appeared that B and his wife had a settlement for alimony, in which adequate means were admitted to be made by the wife who signed the same, I think such record may be asserted by A in defense of his rights.

When the verdict of the jury is in favor of the wife for the property contained in the schedule, being one lot in the city of Atlanta, I think such judgment does not divest the title of a bona fide purchaser under the facts; and, upon the record, I think the judgment of the Court below ought to be affirmed.