Hennon v. Jones , 1920 Ga. App. LEXIS 55 ( 1920 )

Stephens, J.,

dissenting. I cannot agree to the conclusion that the evidence demanded a verdict for the defendant. I concede that had Mrs. Hennon consented to the sale of the automobile, she would now be estopped from asserting title in the trover suit to recover the property from the purchaser. The evidence, however, does not conclusively show that she consented to the sale. It does 'not necessarily demand any such inference. The giving of general authority to the husband to use the car or to employ an attorney to represent her in her efforts to recover the car and defeat its sale under condemnation. proceedings, or the employment herself of an attorney for such purpose, with general authority to represent her, does not demand the inference that either the husband or the attorney had the right to bind her by a sale of the car or a settlement of the ease. Besides, if either had any such authority, the evidence does not demand the inference that he exercised it. Mr. Hennon’s agreement, through his attorney, to a consent order in his own case, to which Mrs. Hennon was not a party, in law binds him alone, and not her. His conduct in his own case, where he does not expressly act also for his wife, does not necessarily demand the inference that he was in fact also acting for her and under any authority which he may have had from her. The action of Mr. Hennon’s attorney, in agreeing to this consent order, in law bound only Mr. Hennon, and did not bind Mrs. Hennon, who was not a party to the case. The attorney’s conduct, therefore, in agreeing to this consent order, whatever authority he may have had to act for Mrs. Hennon, does not demand the inference that he was at the'time acting for her. Nor does the fact that she was present in the office of the attorney when this consent order was agreed upon demand such an inference. Nor did her presence there under such circiimstances demand the inference that she consented to the sale of the car. The consent order recites the case as the State of Georgia versus Smiley Hennon as the owner of an automobile seized in the transportation of intoxicating liquors, and states that “The said Smiley Hennon now agrees that said automobile be sold,” etc., which is signed “W. B. Meba-ne, Att’y for Smiley Hennon.”

The evidence authorized the inference that the car belonged to the plaintiff, even though it may be said that her husband’s money purchased the same and he signed the purchase-money notes. He certainly had a right to make a gift of the car to his wife. She, however, testified that the car was bought with her own money.

Hnder no circumstances can the wife’s title to the car be divested in any condemnation proceeding against the husband alone and to which she is not a party. Such proceeding affects only Ms legal rights. The sale passed ño title from her unless she consented thereto.

I am therefore of the opinion that it was improper for the trial judge to direct a verdict for the defendant. It was not necessary to express any opinion upon the other assignments of error.