Roland v. Roland , 131 Ga. 579 ( 1908 )

Lumpkin, J.

(After stating the foregoing facts.)

1, 2. The plaintiff appears to have proceeded on two theories: First, that a deed of bargain and sale by a wife to her husband was void, and should be cancelled as a clou,d on her title. A sale by "a wife to her husband must be allowed by the superior court. Civil Code, §§2490, 3188. The deed here concerned recites a consideration, and the petition does not negative such recital. Nor does it allege that there was no allowance of the sale by the court. If the allegations of the petition are to be construed as intending to allege that no consideration was paid, then the deed was apparently a deed of gift, which has been held to require no order of court to render it valid. Cain v. Ligon, 71 Ga. 692 (51 Am. E. 281); White v. Stocker, 85 Ga. 200 (11 S. E. 604); Hadden v. Larned, 87 Ga. 641 (13 S. E. 806). On the general theory that a sale and conveyance by a wife to her husband is void, the petition was demurrable.

The other theory was that- the deed from the wife to her husband was induced by fraud or duress. But while the words “fraud” and “duress” are used, there is no sufficient allegation of facts in the petition to show any fraud or duress at the time of the making of the deed. It is alleged in a somewhat vague and general way that the husband carried her in his buggy to the town of Moultrie and “secured her” to sign some paper by which she dismissed a suit previously brought by her, and that he said she had to settle the suit and that he would force her to convey him the land. This is alleged to have occurred about the first of January, while the deed in question is dated January 10th. The plaintiff alleged that she had been living separate and apart from her husband since the preceding July; and there is no allegation sufficient to show any fraud or duress exercised at the time when the deed was executed. Employment of those words alone will not suffice as a basis for equitable relief. Facts must be alleged, not mere conclusions. Carter v. Anderson, 4 Ga. 519; Anderson v. Goodwin, 125 Ga. 664 (8), (54 S. E. 679); 7 Enc. Pl & Pr. 247-8 and citations; Richardson v. Hittle, 31 Ind. 119. The allegation that plaintiff’s husband is in possession of a sewing machine belonging to her adds no equitable strength to the petition. The prayers are not lacking in the quality of extensiveness, including even one that the defendant, who resides in the State of Florida, should be enjoined from coming where the plaintiff is, and from speaking to her. The difficulty with the petition is that it prays too much and alleges too little.

3. One ground of the demurrer was that the defendant, Roland, was the only defendant against whom any substantial equitable relief was prayed, and that the petition showed that he resided without the county of Colquitt. The petition went further. It showed that Roland resided in the State of Florida. But apparently he was in Colquitt county when the suit was brought, as he was personally served by the sheriff. If he was a non-resident of the State, but was within the jurisdiction where the other defendant resided, and was personally served, the court ought to proceed to a decree.

4. A motion was made by the plaintiff to strike “all the answer of the defendant, relating to the order granted by the judge of the superior court at chambers, authorizing or directing plaintiff to make a deed of conveyance to the defendant,” on the ground that “there is no law authorizing a judge of the superior court at chainbers to pass such order; and if such order was passed, it was void.” This motion was granted, the presiding judge holding that “Said order, if so granted at chambers, as set out in defendant’s answer, is void.” To this exception was'taken. The answer of the defendant was not specified tb be sent up as a part of the record, nor was it so sent up. The failure of the petition to make proper allegations can not be cured by recitals in the record, indicating that the answer had set up some character of order. As we hold that the demurrer to the petition should have been sustained, we do not deem it necessary, under the authority Much we have, to require the clerk to transmit a certified copy of the answer which was filed, in order that we may pass upon it specifically. As the judgment which was rendered by the court on the subject recites that his ruling was that a judge of the superior court had no authority to pass an order at chambers allowing a sale by a wife to her husband, and this was the order to which exception was taken, we will only say that the legal position announced in the order was correct. It is the superior court, not the judge of the court at chambers, on which is conferred the authority to grant such an order. Civil Code, §2490.

Judgment reversed.

All the Justices concur. .