Artope v. Goodall , 53 Ga. 318 ( 1874 )

Trippe, Judge.

1. It was claimed in the argument before this court that the profits or increase of the trust estate became a part of the corpus of that estate, and by the terms of the deed would go to the remaindermen. It was not so provided in the deed, which was the marriage contract. By that, a separate estate ■was created 'in the wife, free from the control of the husband, and at her death the property, not the income, was to go to the children if the wife died intestate. Unless a provision was made therefor we know of no authority that would authorize the construction of such terms to be that the remainder interest included the income or profits. That belonged exclusively to the wife.

2. Previous to the adoption of the Code the mere creation of a trust, without anything to show that a separate estate was intended for the wife, did not exclude the marital rights of the husband. But if such trust property be purchased with the income of the other property in which the wife has a sep„arate estate, as in the case of the deed “ to Lamar, trustee for Mrs. McLaughlin,” she could claim its protection against the marital rights of her husband, and purchasers from him, with notice. It was stated in Logan vs. Goodall, 42 Georgia, 95, which was this case in the name of another plaintiff, that by the terms of the marriage contract the intended husband bargained and agreed that any property she might thereafter become entitled to in any manner whatever, should- be free from his marital rights, and that he was thereby estopped from setting them up.

3. It has often been held by this court, that if proof goes to the jury without objection, which would show a right in the party offering it, the jury may consider it, although there are no allegations in the pleadings setting up the facts thus proved. This is put upon the ground that if objection be made that the pleadings do not authorize the testimony, the party tendering it might amend so as to make it-admissible. See 39 Georgia, 708; 49 Ibid., 268.

4. The principle asserted in the fourth point of the syllabus we consider was virtually decided in this case when it was here before: 48 Georgia. 537. As was asked in that decision, what injury can result to anybody by letting this case, which has undergone a protracted and costly litigation, be continued for the benefit of those who may now be entitled to the property? We do not say they are; but why not let them adopt the case and have their rights determined? If any mesne profits should be the separate estate of Mrs. McLaughlin, or if any special direction be necessary to be given to any particular portion of if, under the broad powers given to a court of law, the verdict can be moulded to meet the exigency.

5. As to one-half of the lot of land in controversy no one claims the title thereto under the husband. It can, therefore, be of no interest to any claimant as to what his marital rights may have been, so far as that half is concerned.

6. The deed to Lamar, trustee, etc., prima fade put the title in McLaughlin, the husband. Purchasers from him had the right to treat him as the true owner, if they had no notice of the equitable rights of the wife. And this is true, whether or not such purchasers had ever seen such deed. Because a purchaser was ignorant of a fact or a deed which makes his title good, he cannot be denied the right to set up such a fact, or such a deed in support of his title. One who bought of McLaughlin, or of a purchaser under him, is to be assumed as believing he had the title, if nothing appears to the contrary. If on subsequent examination such purchaser discovers there was a deed which on its face did vest the title in his vendor, and which would protect his own title, it would be absurd to hold that it should be of no avail, simply because be did not examine'before he bought and see that he did, in fact, get a good title.

7. Upon the question as to how far a witness called to sustain another who has been impeached by proof of general bad character, should be required to go in stating his knowledge of the general character of the impeached witness, before he can answer the final question put in such cases, it is almost impossible to prescribe by a specific rule, what exact terms the sustaining witness should use. To impeach a witness by proof of general bad character, the impeaching witness should be first asked as to his knowledge of the general character of the witness, and next as to what that character is, and lastly, he may be asked if, from that character, he would believe him on his oath : Code, section 3873. “The witness may be sustained by similar proof of character:” Section 3874. We think that under these sections, if the sustaining witness .is not able to say that the general character of the impeached witness is not bad, he should, at least, be required to state that it is not such as to render him unworthy of credit on his oath, before he can give his own declaration, that from this character he would believe the other on his oath. This would meet all the difficulty presented in this case, and probably any that would arise in any other.

Judgment reversed.