Kennedy v. Lee , 72 Ga. 39 ( 1883 )

Jackson, Chief Justice.

This was a levy on property as the husband’s, and claim made to it by the wife. The judge charged the jury that “ if Mrs. Kennedy’s money paid for the land, but the deed was made to Mr. Kennedy, and while it remained so, Kennedy gave out that the land was his; by her direction returned it for taxes as his own; so represented it to Stevens at the time of obtaining the credit for which the note to Stevens was given; and Stevens gave him that credit on the faith of that property being his, without notice of her right, then the land is subject, notwithstanding Mrs. Kennedy had an equitable right to the land, and notwithstanding she afterwards procured the first deed to be canceled' and a deed to be made to her by the vendor.”

In view of the facts disclosed by the record, we see no error in the charge. Those facts are sufficient to authorize such a charge, if otherwise the law. It is the law, if the facts authorize it. The principle is universal, that if one of two innocent persons enable a third person to cheat the other innocent person, he who put it in the power of the wrong-doer to do the wrong, though innocent of intention to do wrong himself, must suffer, rather than he who received the wrong, without directly or indirectly empowering or contributing to it.

It is another principle well known to our reports, that dealings between husband and- wife are to be scanned closely, as the relation facilitates the commission of that fraud which is always private and subtle. The-case .at bar presents these as its prominent features. Husband and wife in the possession of land—no deed on record— first deed made by agent or vendor to husband—some two' years after, deed to wife—that deed antedated—by direction of wife, taxes returned by husband on the property' as his own,. “ because it would look better”—property represented as his own, when credit was given him by the plaintiff; and that credit given him on the strength of this representation, and before any deed to wife, and without any notice of any right, legal or equitable, in the wife, to the creditor. These features, under the rulings of this court, exhibit a countenance with which plain and open dealing does not fall in love, and not that honest front which tho law admires. Certainly tho wife put it in the power of her husband to get credit on the strength of this land, and to<cheafc this creditor, if the jury believed him; ’ and liaving done so, his equity is superior to hers, kept secret and hidden from him and the world at the time he gave the credit.

Brown vs. West et al., 70 Ga., 201; 68 Ga., 524; 60 Ib., 82 : 59 Ib., 69; 57 Ib., 235; 56 Ib., 79; 61 Ib., 171, 345; 63 Ib., 307.

Judgment affirmed.