Cunningham v. Schley , 41 Ga. 426 ( 1870 )

McCAY, J.

The Act of 184-7, in relation-to the record of marriage settlements, so far as it relates to settlements then existing, is a very harsh law. At the date of its passage, the beneficiaries of a settlement then existing, had a perfect right to the property it conveyed. The effect of the statute was to require a record of the instrument, on pain of forfeiture, as against certain dealers with the husband.

It is but fair, that a law of this character should be strictly construed, and not extended beyond its terms. And such has been the course pursued by this Court, in its previous adjudications, upon this subject: Boston & Gunby v. Cummings, 25th Georgia, 277; Cloud & Shackleford v. Dupree, 28th Georgia, 170.

Indeed, the last case referred to, goes upon the broad principle that the words of the Act, the creditor attacking an unrecorded settlement, must show that he gave credit on the faith of the property; that is, that he trusted the husband, under the belief that the property was his.

And such, we think, is the meaning of the words of the Act. The beneficiaries in the settlement are themselves purchasers; *often the whole instrument is simply a means by which the wife retains or gives direction to her own property; and there is no equity at all in favor of the creditor. If, by the neglect to record, a person is misled—as if he finds the husband in possession, and purchases or gives credit, believing the property to be his, giving credit, based on that belief—an equity does arise in his favor. And the statute, in such cases enforces it, by declaring the settlement inoperative as against one thus misled, by the neglect to record the settlement.

There is nothing in this record bringing the case within this rule. There is no pretense that the credit was here given under any misconception. Indeed, the proof is rather the other way, to-wit: that the trustee was a man of large means in his own right, independently of the property mentioned in the settlement.

The statute requires, that the creditor shall have given credit, bona fide, on the faith of the property. There must be some affirmative reliance upon the fact that apparently the husband was the owner. The creditor must appear as an injured party, by the neglect of the beneficiaries to notify him, either in fact or by record, that the settlement exists.

2d. We do not see why the sayings of the deceased trustee are not exactly within section 3699 of the old Code. The declarations were clearly against his interest—they charged the property with the trust—they clearly were not made with a view to any (then) pending litigation, and the maker of them is dead. The weight to be given to them is another matter. That was for the jury to determine, under all the fact and circumstances of the case.

3d. It is true, that as a general rule, in a marriage settlement, the wi'fe—the first taker, the tenant for life—may in a certain sense be said stand in the place of any other life-tenant, and be the depository, as it were, of the interest of the remaindermen, their title passing out of the grantor, with her. But the very object of the trustee is to hold not only the separate estate of the wife, but to preserve the remainder. He is trustee as well for the remaindermen as *the wife. Indeed, if the remainders be contingent, by the old rules, a trustee to preserve them was necessary. Whether necessary or not, nothing, it seems to us, is clearer than that he is trustee. He holds the title. It is not his. He holds it for the benefit of the real owners, who are, after the wife’s death, the remaindermen. He is, therefore, a trustee, and is chargeable as such.

4th. When, by consent, the Judge acts as both Judge and jury, it has been the uniform rule, to give to his finding on the facts all the presumptions usually given to the finding of a jury. Indeed, as he is a kind of arbitrator, selected by the parties, it might be contended that his finding stood upon even higher ground. But that it stands upon as favorable ground is undoubted. Under this rule, we do not think this finding is so contrary to the evidence as to require a new trial.

5th. When the country has furnished to disputants a tribunal .for the trial of the issues between them, it is. a public right that . they shall not trifle with the privilege. They shall not take up the public time with two trials, when, by proper diligence, they might have secured their rights by one.

That the vendor of property should be able to tell how it was paid for, is so natural a presumption that it strikes the common’ mind at the first thought. There is no good reason given why inquiries were not made of this vendor before the trial. He was at .hand. It was plain, that the inquiry was important, and would most surely be material on the trial. We think there was want of proper diligence, and on grounds of public policy,'which favors the ending of litigation, we do not feel like coming to .the aid of one who has had his day and neglected to take the propel: and obvious means to secure his rights.

Judgment affirmed.

*APPENDIX.

The following concurring opinion in Willoughby Jourdan v. Lewis B. Miller, ante page 51, was overlooked: