Lamar v. Jennings , 69 Ga. 392 ( 1882 )

Speer, Justice.

The question presented by this record for review is, whether the property of the husband is so affected by the fact of separation from the wife that a bona fide purchaser for full value cannot acquire title against a judgment of the wife’s father for board and necessaries of the wife during such separation ; such purchase being prior to the judgment and there being neither libel for divorce nor application for alimony by the wife pending. The court below'held that section 1721 of the Code was a part of the divorce law of the state, and had no application to the case made by the agreed statement of facts, and would not be extended beyond the provisions of the statute. Section 1721 of the Code declares: “After a separation, no transfer by the husband of any of the property, except bona fide in payment of pre-existing debts, shall pass the title so as to avoid the vesting thereof according to the final verdict of the jury in the cause.”

The purpose of this section clearly was to guard and secure alimony to a wife, after separation, out of the estate of her husband by imposing restrictions upon its alienation unless in payment bona fide of a pre-existing debt.

As against both husband and wife existing creditors at the time of separation have equities higher than either. But next to these the law intervenes to protect the wife. But the law, to give this protection, must be invoked. A mere naked legal right avails nothing unless asserted by proper proceedings. What is the protection here tendered to the wife, after separation ? She must act and claim this preference, either by suit for divorce or claim for alimony. The restriction imposed is that such alienation by the husband (except bona fide and in payment of a preexisting debt) shall not pass the title “so as to avoid the vesting thereof according to the final verdict of the jury in the cause.” She has this claim to her alimony superior to the title of a bona fide vendee whenever the jury who investigates her claim and her conduct vests the title in her by a final verdict in the cause. But if she never asserts this, her prior right and equity, it remains in abeyance, and the vendee of the husband holds against all others where he has bought of the husband bona fide and before judgment of other creditors. This, it will be observed, is not a contest between the wife claiming her alimony in her own right under a final verdict and judgment and a vendee buying after separation.

It is true, unless provision is made voluntarily or by decree, the husband who has separated from his wife is liable to one who furnishes her with board, clothing and necessaries, where her conduct is blameless. Code, §1749. But it will be observed this section declares simply this liability; it gives to such creditor no preferred claim upon the husband’s estate, and imposes no restraint upon the husband in the alienation of his estate as to such debt, if made bona fide and for value. On the other hand, he stands as any other creditor of the husband, and can avail himself alone of like remedies to collect his debt.

Such, in our judgment, is the position of the plaintiff in error; when his daughter was abandoned by her husband, he received her and provided for her, an act both of justice and humanity, no doubt, to her; part of her expenses has been paid; but when he seeks to condemn property of the husband that, according to the record, was alienated by him bona fide and for value before judgment, he must fail as any other creditor would under like circumstances,

This restriction upon the free and unrestricted alienation of prpoperty by the owner is contrary to public policy, and we cannot extend it by construction beyond the plain intent and meaning of the law. This wife rested uncomplainingly under this desertion by the husband, so far as the record shows, through a series of many years She filed no suit for divorce or made no application for alimony. Had she done so and secured a judgment either in money or property, her title would have vested superior to that of the vendee who bought after the separation bona fide and for value. But the law gives no such advantage to one who supplies her food and clothing, and we cannot by construction give such effect to the Code, however equitable and just may be the claim of the plaintiff in error.

Authorities cited by plaintiff in error: Code, §§1758, 1736; 3d Hurlstone & N., 261; Code, §§1749, 1736, 1757, 1758, 1721; 44 Ga., 437; 52 Ib., 394; 65 Ib., 193; 23 Ib., 401; 55S Ib., 215; 60 Ib., 357; 65 Ib., 461; 44 Ib., 447; 65 Ib., 193; Ib; 676; 59 Ib., 72, 256; 6 Ib., 166.

By defendant in error: 52 Ga., 389-93; 44 Ga., 437; 62 Ib., 427; 58 Ib., 86; 59 Ib., 613; Code, 1721; Ib., 1749; 52 Ga., 394.

Judgment affirmed.