Gould v. Glass , 120 Ga. 50 ( 1904 )

Cobb, J.

(after stating the foregoing facts.) 1. John E. Teynac had property, and married a widow who had a daughter. The controversy is between mother and daughter over the property of the husband and stepfather, now deceased. Under his will the mother is entitled to a life-estate in all of his property, and the daughter to an estate in remainder. The mother claims that a portion of the property passed to her during the lifetime of her husband, and that the daughter has no interest therein. The daughter denies this claim, and avers that the property is the property of the estate of her stepfather, and that she has an estate in remainder therein. The controversy had its origin in a transaction which took place on August 31, 1877, when Ellen Teynac and her husband John E. Teynac united in a deed to a loan association to a tract of land referred to in a statement of facts. The transaction was peculiar in more than one particular. The loan was made to Ellen Teynac. She signed the note and transferred stock in the association owned by her as security for its payment. As additional security, land owned by John E. Teynac was conveyed to the association; the deed reciting that it was conveyed to secure a debt under the act of 1871, authorizing titles to be conveyed as- security for debts. The deed was signed both by Ellen Teynac and John F. Teynac in the order - named, and attached to the deed was a written consent by Ellen Teynac that her husband should make the deed. The law of force at that time required that a wife’s consent should be obtained to a conveyance by her husband of his property to secure his debt, but there has never been any law which required a wife’s consent to a conveyance by her husband of his property to secure her debt. While the transaction had these peculiarities about it, it was, up to this point, nothing more or less than the husband pledging his property to secure the wife’s debt, which of course he had a right to do as against every one, even his own creditors if he was solvent. The bond to reconvey which was given' by the association was made to Ellen Teynac, wife of John E. Teynac, and provided that upon payment of the debt by Ellen Teynac the association would reconvey the property to her, “ or to whomsoever she may elect.” When the debt was paid-the association executed a deed releasing, quit-claiming, and reconveying the property to Ellen Teynac and John E. Teynac. This deed was dated August 20, 1883, was filed for record February 19,1884, and recorded February 26, 1884. The land described in this deed embraced both what is called the Teynac Eeservation and the lots sold to the Oglethorpe Eeal Estate Company. The latter, for convenience, will be hereafter referred to as the Oglethorpe land. _ As the two pieces stand upon a somewhat different footing, we will first deal with the question as to the status of the Oglethorpe land. Prior to the transaction with the association, the legal title to all of the land was in John F. Teynac. ' Under his deed the legal title passed to the association ; but he was still the owner of the equity of redemption, and, in the absence of a stipulation to the contrary, the law would revest in him the title to the property upon payment of the debt either by himself or by his wife. The express undertaking, however, of the association was to convey the property upon payment of the debt either to Ellen Teynac, or- to some one whom she should select. John F. Teynac would not be bound by this unless he consented to it, and a conveyance by the. association to any one other than John F. Teynac of any interest in the property would be unauthorized in the absence of a consent or direction on the part of John F. Teynac to that effect. It would seem from the terms of the deed executed by the association that Ellen Teynac had elected that the land should be conveyed to John F. Teynac and herself as tenants in common. This would be the legal effect of the paper, provided Ellen Teynac had a right to direct how the deed should be made. The deed was recorded within the time allowed under the existing law for the record of such a deed; and about six years thereafter John F. Teynac and Ellen Teynac united in a deed conveying the Oglethorpe land as tenants in common, and simultaneously with the execution of the deed the purchaser gave to John F. Teynac and Ellen Teynac a mortgage to secureihe purchase-money. These facts are sufficient to raise a presumption of a gift by the husband to the wife to an undivided one-half interest in the mortgage, even if the presumption as to a gift of a one-half interest in the land did not arise prior to the sale and the mortgage. The general rule is that when a husband conveys property to his wife, or directs or permits the title to be taken in the name of his wife to property purchased with his money, or to which he would have a right to demand that title be made to him, the law raises a presumption of a gift, and this presumption remains until it is shown affirmatively that there was no intention to give on the part of the husband. See Denning v. Williams, 26 Conn. 226, 68 Am. Dec. 386; Thorn. Gifts, §§ 245 — 246. There is absolutely no averment in the petition or its amendments, or even in. the amendment which was disallowed, of any fact which would authorize a jury to find that the presumption of a gift arising from the facts above enumerated had been rebutted.

2. The status of the Teynac Reservation is materially different from that of the Oglethorpe land. It does not appear that John F. Teynac ever did any express act with reference to this property like uniting in a conveyance recognizing that Ellen Teynac was in* terested therein. On the contrary it is distinctly alleged that after the conveyance of the Oglethorpe land JohnF. Teynac conveyed on two occasions, by a deed signed by him alone, certain portions of the Teynac Reservation to secure his debts. While, as stated above, the general rule is that when a husband allows title to his property to vest in his wife, there is a presumption of a gift, still this is not a conclusive presumption, and the husband is permitted to repel it. See Thorn. Gifts, § 245. See also, in this connection, Roberts v. Griffith, 112 Ga. 146. Dealing with the property as his own and ignoring the wife as a Co-owner would be a material circumstance to be considered in determining whether there was an intention on the part of the husband to make a gift; and the act of the wife in treating the property as that of the husband would also be proper to be considered in determining whether there had been by her an acceptance of the gift. The facts alleged were sufficient to raise a presumption of a gift as to a half-interest in all the land embraced in the deed to the association. As stated above, there was nothing alleged to repel this presumption so far as the Oglethorpe land was concerned. The facts alleged in reference to the Teynac Reservation were, however, sufficient to raise an issue of fact as to whether there was an intention on the part of the husband to include the whole tract in the gift, or that the same should be limited to the Oglethorpe land.

3. The averments of the petition are sufficient to make an issue for the jury as to whether the intention of the husband to give éxtended to the whole tract or was limited to the Oglethorpe land; and therefore it becomes necessary to determine whether, this being conceded as true, the allegations of the petition were such as to authorize in behalf of the plaintiff the relief prayed for by her. She prays that the different papers which are relied upon as raising the presumption of a gift may be reformed so as to eliminate therefrom the name of Ellen Teynac altogether, upon the ground that her name was placed therein as a result of a mistake. The allegations of the petition in reference to mistake are of the most general nature. It does not appear how the mistake was made* whose mistake it was, or what brought about the mistake. In other words, taking the allegations as a whole, they are nothing more nor less than a statement to the effect that as John E. Teynae owned the land, he certainly could not have intended that anybody else should have any interest therein, and that therefore any paper which showed a contrary intention must be founded upon a mistake. Stripped of all its verbiage, this is the substance of the petition in reference to this matter. A court of equity will not reform a paper upon the ground of mistake on any such general allegations.

4. The allegations of fraud are also general in their nature, and for this reason are insufficient to authorize a decree in the plaintiff’s behalf. In order to set aside a conveyance for fraud, the allegations attacking the instrument must be specific in their nature.

5. The plaintiff is a mere volunteer. She is not an heir of John E. Teynac, nor was she a party to any of the conveyances sought to be reformed. Under his will she took a remainder interest in all of his property, subject to the life-estate of her mother; but this of course gave her no interest in any property the title to which had passed out of him, either by gift or otherwise, during his lifetime. If John F. Teynac at the date of his death was the owner of the property in controversy, of course as remainderman under his will the plaintiff would be interested in the property; but if for any reason title to the property had passed out of him during his lifetime, she would have no interest in it, and would not be heard to reform papers made by him which had the effect to pass the title, or which could be used as evidence of an intention to that effect.

6. There was no distinct, unequivocal allegation that Ellen Teynac was insolvent, nor was there any prayer for discovery; and* hence there was no equity in the petition so far as the prayers which ask that the executrix be placed under bond, or that a receiver be appointed, and injunction issue, were concerned. This is true though there were general allegations of mismanagement and waste. See Griffin v. Henderson, 116 Ga. 310.

7. The petition alleged, in general terms, mismanagement on the part of the executrix and threats to misappropriate the estate, but did not contain any specific allegation showing any act of misappropriation or mismanagement, nor were there any averments from which it could be ascertained that the executrix had incurred any liability to the estate in any given sum; nor was there a prayer for discovery. It is conceded that since the death of Ellen Teynac, even if the judgment should be reversed, there would be no equity in the petition so far as the application for a receiver and for injunction are concerned; but it is contended that the petition should remain in court for the purpose of an accounting. The allegations of the petition are entirely too general for this purpose. As stated above, there is no averment from which it could be shown that the estate of Ellen Teynac is liable to the estate of John E. Teynac for any given amount growing out of a misappropriation by her of the assets of that estate. The judgment, therefore, will not be reversed in order that the case may be held in court for the purpose of an accounting. Even if the petition was amendable in this particular, the plaintiff in error should have availed herself of the opportunity to amend before the judgment was entered dismissing the case on demurrer.

8. There was no error in disallowing the amendment. It was in large part, if not entirely, an elaboration of the. allegations of the original petition, making more specific certain averments and prayers as to the Teynac Reservation. Taken as a whole, both that part which was practically a restatement of allegations in the original petition, as well as those portions which might be said to introduce new matter, there was nothing in the amendment which had the effect to relieve the petition from the infirmities under which it labored; and even if allowed, it would not have saved the case from the inevitable fate which the law had in store for it. It probably .would not have been erroneous to allow the amendment; but if it had been allowed, the petition would still have been demurrable.

9. After a careful consideration of the entire record and of the numerous points raised therein, we have reached .the conclusion that the judgment complained of was the only proper judgment that could have been rendered under the facts as they appear in the record. Absolutely nothing appears in the petition or its amendments to rebut the presumption of a gift as to a one-half interest in the Oglethorpe land, and under the facts alleged a jury would be compelled to find that a gift was intended, and was accepted. As to the Teynac Reservation, the fact that John F. Teynac dealt with this property as his own after he had treated his wife as a part owner of the Oglethorpe land would be a strong circumstance that he did not intend the gift to extend to this portion of the property; and the fact that Ellen Teynac did acts in her capacity as executrix which could be construed as treating the Teynac Reservation, or at least a part of it, as still belonging to the estate of her husband would be a circumstance which might be properly considered in determining whether there had been an acceptance by her of the gift so far as the Teynac Reservation was concerned. In other words, the intention to give and the intention to accept were present in reference to the Oglethorpe land. Whether there was an intention to give, and whether there had been an acceptance, was questionable in regard to the Teynac Reservation. But even if the Teynac Reservation is the property of the estate of John F. Teynac, the plaintiff is not entitled to the relief prayed for in the present case; for, upon the death of Ellen Teynac, she became the owner of the Teynac Reservation, and so far as the specific property is concerned she has a complete remedy to recover the same by an appropriate action against the person in possession. She had no right to recover it during the lifetime of Ellen Teynac, and Ellen Teynac’s death pending the litigation does not give the plaintiff the right to proceed against her legal representative in the present action.

Judgment affirmed.

All the Justices concur.