Gordon v. Harris , 1913 Ga. LEXIS 295 ( 1913 )

Evans, P. J.

The statute forbids a married woman to sell her separate estate to her husband, unless the sale is approved and sanctioned by the superior court of the county of the wife’s domicile. Civil Code (1910), § 3009. The policy of the statute is to declare invalid every sale made by a wife to her husband, whatever may be the form of the transaction. The law looks to the essence of the transaction, and the wife will not be estopped even by her solemn deed to dispute that the real contract was a1 sale. Dunbar v. Mize, 53 Ga. 435; Although the statute pronounces a sale by the wife to the husband to be invalid unless approved by order of the superior court of the county of the wife’s domicile, nevertheless it has’ been held that she may voluntarily give her property to her husband. Cain v. Ligon, 71 Ga. 692 (51 Am. R. 281). So that the question submitted by the demurrer to the petition in this case is, whether the transaction described in the agreement between the husband and wife amounted to a sale or a gift.

Notwithstanding an insistent protestation to the contrary, the real contract was a sale by the wife of her property to her husband in satisfaction of the wife’s claim for alimony. The husband borrowed from Mrs. Winters the money with which to settle the claim of alimony, and the wife executed her deed to Mrs. Winters to secure the loan. The substance of -the transaction is the same as if the wife had conveyed the property to her husband, who in turn executed a security deed to Mrs. Winters for a loan of money with which to pay the wife. The declaration in the contract that the transfer to the husband was to be regarded as a gift is but a verbal assertion variant from the legal effect of the transaction as disclosed in the writing. It would seem rather remarkable that a wife living separate and apart from her husband, and clamoring for alimony, should give the husband property sufficiently valuable to enable him to borrow the money she was demanding. We do not think the contract warrants a construction that the wife was giving any land to her husband.

The petition alleges that Mrs. Winters was a party to the original transaction, and that the defendant Harris had knowledge of all the facts at the time of his purchase. If Mrs. Winters participated in the original transaction in aid of an illegal sale to the husband, and the deed to her was but a device to avoid the statute, the plaintiff’s deed to her would be void, and her privy, with knowledge of the invalidity of her deed, would get no title as against the wife. The court erred in dismissing the petition on demurrer.

Judgment reversed.

All the Justices concur.