Burnside v. Terry , 51 Ga. 186 ( 1874 )

Trippe, Judge.

1. Burnside had obtained judgments to the amount of $3,000 00 against Field, before 1868. Field, on his own application, iu'1869, had a homestead set apart for himself as the head of a family, consisting of himself and wife. The application is in his own name, and the proceedings in the homestead case show nothing about a family, or that Field was the head of a family. The evidence in the ejectment case proves that he had a wife. A few days after the homestead was assigned, Field executed a deed to Burnside to a part of the land contained in the homestead, worth $1,000 00, in satisfaction of Burnside’s judgments. This was done under a previous agreement between the parties. Mrs. Field joined her husband in the deed, but there was only one witness who attested her signature, and the ordinary who approved the deed was tbe brother of the grautee. Burnside claimed title under this deed. This case was before this court at July term, 1872: See 45 Georgia, 621. It was there held that the deed to Burnside was a déed conveying the land on a condition subsequent, and not a mortgage. The deed is set out in full in the report of that case. This point is no longer open. It was also then held that the ordinary who approved the deed of the husband and wife, being the brother of the grantee, the deed was invalid. It was also said that if the sale was for the extinguishment of the husband’s debts, it was not a legal sale. But all this was on the assumption, as was then held to be the law, that the homestead was' not liable to the judgments of Burnside against the husband, and "Warner, chief justice, who pronounced the opinion of the court, says: “ If the homestead is to be held good as against, the pre-existing debts of the husband, the ordinary should not have approved the sale of the land for that purpose.” Since that time it has been finally settled that the homestead is 'not good against such debts, and that the homestead act, to that extent, is unconstitutional and void.' This being so, the voluntary conveyance by the husband, through the medium of the ordinary, and in the form of a homestead of this land, for the benefit of himself and wife, or as the homestead proceedings show, to himself, as a homestead, was void. Section 1952, Code, declares that every voluntary deed or conveyance not for a valuable consideration, made by a debtor insolvent at the time of such conveyance, shall be fraudulent in law against creditors, and as to them null and void. Section 2662 says, an insolvent person cannot make a valid gift to the injury of his existing creditors. Section 2631 enacts that every sale made with intent to defraud either 'creditors of the vendor or prior or subsequent purchasers, if such intention be known to the vendee, should be absolutely void as against such creditors or purchasers. If these deeds or conveyances thus declared void, absolutely null and void as against creditors, are so when made by the debtor directly, they are equally so if he join with him in their execution a trustee (section 1952,} or if lie procure the ordinary to make a record of it in the form of an application for a homestead. There was then no title vested in Fields and his wife, the beneficiaries under the homestead, as against Burnside, the judgment creditor, and as no fraud is charged in the transaction against the creditor, the title conveyed by Field is good against him or his wife as claimants of the homestead.

2. Had the testimony of John A. Wimpy, Esq., been admitted it would have shown that Field and wife, before the homestead was set apart, had agreed with Burnside that this lot should be conveyed to him, that they had in advance contracted with the creditor that if no objections were filed to the application for the homestead he should have the lot and a deed would be made to him and that this was done through their attorney, the said Wimpy, and by their authority. If the fact of Mr. Wimpy’s having this authority was communicated by him to Burnside, and Burnside, through him, made the contract and acted on it, and it was accordingly carried out, it could not be that the giving such authority was such a communication by client to attorney that it is protected bjr law against being proven by the attorney. If a party hold .out his attorney as one having authority from him to make a special contract respecting pending litigation and the attorney acts upon it, treats with his antagonist and thereby secures important rights to the client, he cannot deny the right of the attorney or of the opposite party to prove by the attorney the contract and the authority to make it. It is as if the attorney was constituted a special agent for that purpose. We would not trench upon the sacredness of confidential communications of elien.t to attorney, but that is not intended to be confidential or sacredly secret which the attorney is to propose to the other party as a foundation for bargains and contracts for the benefit of the client when these proposals are accepted and acted on and the benefits securedj3 If this be the state of the case as to Mr. Wimpy’s testimony, it should have been admitted.

Judgment reversed.