Munroe v. Baldwin , 1916 Ga. LEXIS 244 ( 1916 )

Lumpkin, J.

B. A. Munroe and others brought suit against J. E. Baldwin, seeking to recover a lot of land and mesne profits. They alleged that they were all of the heirs of B. O. Munroe, deceased, and that there was no administration on his estate. It was shown that B. O. Munroe executed a deed to his wife, and that he and she continued to live together on the land. The defendant introduced in evidence a certified copy of a deed from B. O. Munroe to his wife, which expressed a consideration of $3,000. From this it appeared that the deed was attested by two witnesses, neither of whom was an official witness, and that it was probated for record by a third person, who did not appear as a witness. No objection was made to the evidence on that ground; but objection was made on the ground that the conveyance was from a husband to his wife, and that no order of court confirming the sale was shown. The objection was overruled, and the copy deed admitted. The defendant introduced in evidence a copy of a deed from the wife to the Georgia Loan and Trust Company, to secure a debt. This deed contained a power of sale, authorizing the grantee (in the language of the synopsis of it contained in the bill of exceptions) “to advertise and sell the lands therein described, in the event of a default in the payment of the principal and interest, or either, after having advertised the same a certain time specified in the deed.” The defendant introduced also a deed from the wife, by the Georgia Loan & Trust Company as attorney in fact, to W. O. Strickland and J. L. Eaves, conveying the premises in dispute. The bill of exceptions recites: “said deed purporting to be made by virtue of a sale under the power conferred in the security deed made from the said Millie C. Mun-roe [the wife] to the said Georgia Loan & Trust Company.” A bond for title from Eaves and Strickland to J. E. Baldwin and Mrs. G. N. Baldwin was introduced. The court directed a verdict for the defendant, and the plaintiffs excepted.

The legal principles controlling the case are sufficiently stated in the headnotes. We need not discuss whether a conveyance from a husband to his wife, based on a pecuniary consideration, falls within the language of the Civil Code (1910), § 3009, which declares that “No contract of sale of a wife as to her separate estate with her husband or her trustee shall be valid, unless the same is allowed by order of the superior court of the county of her domicile.” Whether the payment of money by the wife for a conveyance from her husband, or the accepting of such a conveyance from him in discharge of an indebtedness due by him to her, can fairly be called a contract of sale by the wife with her husband as to her separate estate, is not now before us for determination. There has been some discussion on this subject heretofore. If it be assumed that such a transaction falls within the terms of the code section above quoted, the purpose of that section is to protect the wife, and she or her privies alone can attack the conveyance as invalid. The plaintiffs in the present case claim under the husband as his heirs, the defendant under the wife. The undisputed evidence showed title out of the husband; and the direction of a verdict in favor of the defendant was right.

Judgment affirmed.

All the Justices concur.