Campbell & Jones v. Murray , 62 Ga. 86 ( 1878 )

Bleckley, Justice.

1. A husband farms upon land belonging to Mb wife and her sister, but without their consent and against their objection, intending the profits for their benefit. Does this en title him to contract debts for advances and supplies to carry on the business, and bind them or their property for the payment of such debts ? To ask the question is to answer it in the negative. 55 Penn., 386; 103 Mass., 560; 5 R. I., 376; 1 Coldw., 67. It does not appear that any profits were produced, or, if so, that they went to the ladies.

2. A conveyance of the wife’s land to secure the husband’s debt is simply void. Code, §1783.

3. Rut the wife’s sister is left free by the law to assist her brother-in-law in his business, just as if she bore no relation to him whatever. If she is of full age, though she reside in his family and look to him for protection, she may become his surety, and may convey her land to his creditor to further secure the debt, and she will be bound, as any other person would be by like acts and engagements. Nor will any fraud or misrepresentation practiced upon her by the debtor affect the creditor, though the latter be incidentally benefited thereby, unless he participated in the same, or had notice of it.

4. In this case, it was-sought to affect the creditors on the doctrine of agency; that is, by treating the debtor as the agent of the creditors in procuring the execution of the papers. The fraud committed by'the debtor on his sister-in-law would thus, it was argued, be the fraud of the creditors, perpetrated through their agent; Rut in causing his sister-in-law to execute the papers, the debtor acted for himself, and not as the representative pf his creditors. He desired indulgence upon his debt, and to obtain it, undertook to furnish the required security. The creditors had a right to dictate the terms on which they would grant indulgence3 and to draft the very instruments which must be executed before it would be extended. To say that the debtor acted as their agent in complying with the conditions prescribed to him, would be to confound all the established distinctions between independent and representative action. The debtor was his own principal, and the lady must be considered as having signed at his instance, and for his accommodation. Any other view of the matter would require us to regard the kindly offices of sureties as extended to creditors rather than to debtors.

5. On the question of usury, the deed is to be judged by the law as it existed at the time of execution. There was no intention to postpone delivery, and when the deed reached the hands of the creditors, it had effect from the time it bore date. The repeal of the usury laws in the interval, did not erase the taint. It is not necessary that the grantees in a deed should be actually present at the time a conveyance is executed. . It may become completely operative though they never see it. In other words, there may be a virtual legal delivery to the absent. A delivery to the messenger or carrier by which it was transmitted, or intended to be transmitted, would be sufficient.

6. Rut though a deed be void for usury, why should it be canceled so long as the debt and lawful interest remain unpaid? The cancellation of a deed is equitable relief, not a legal remedy; and equity grants its relief against usury on terms. "Whoever would have equity must do equity. 4 Ga., 239, 240, 241; 9 Ib., 137; 10 Ib., 389; 1 Story’s Eq., 64 e, 301; Tyler on Usury, 435, et seq. It is a mistake to suppose that because a usurious deed is not available as title, the maker can call for it at pleasure and have it canceled. Even if it be entirely worthless to the creditor, he has a right to hold if it he obtained it lawfully and without fraud. It is his property until the purpose for which it was given has been subserved, so far as that purpose is consistent with equity and good conscience. And what under the sun is more consistent with the best equity and the best conscience than for a creditor to receive his principal and lawful interest ? Let him have these, and then let him be constrained to surrender or cancel his securities, be they real or only nominal.

7. On themode of polling the jury, énough is said in the seventh head-note. There was no legal verdict. See 6 Johns., 68.

Judgment reversed..