Thompson v. Wright

Stephens, J.

Mrs. Thompson brought suit against Wright as administrator of the estate of Mrs. Cora Hendrix, deceased, to recover upon a note which had been executed by decedent to T. P. Hendrix. The note matured January 1, 1926, and was transferred after maturity to the plaintiff. There was an entry on it that it was for purchase-money for land designated. A defense interposed by the administrator was that the note, if made by his intestate, was void in that it was executed by her to her husband as a promise to pay the purchase-price of land sold by him to her, and that its execution had not been allowed by order of the superior court of the county of her domicile. A demurrer by the plaintiff to the plea was overruled. The case proceeded to trial and resulted in a verdict and judgment for the defendant. To the judgment overruling the demurrer, and to the judgment overruling the plaintiff’s motion for a new trial, the plaintiff excepted. Upon the trial the facts set out above as appeared from the petition and the defendant’s plea were ' established by undisputed evidence. A verdict for the defendant was directed. The plaintiff’s motion for new trial was overruled, and she excepted. The question for determination is whether the administrator of a married woman, in a suit against him on a note by a transferee thereof after maturity and not in due course, which note was executed by the intestate to her husband for the purchase-money of land sold by the husband to the intestate, can plead the coverture of the wife, the note having been executed without the transaction having been allowed by order of the superior court.

The Code of 1933, § 53-504 (Code of 1910, § 3009) provides: “No contract of sale by a wife of her separate estate to her husband or her trustee shall be valid, unless the same shall be allowed by order of the superior court of the county of her domicile.” (Note the somewhat different verbiage of section 3009 of the Code of 1910, which difference, however, is immaterial here.) This section voids a contract between a husband and a wife under which the wife sells her separate estate to her husband, in the absence of an approving order of the superior court. Does the term “separate estate” as here used cover money of the wife which she by a promissory note promised to pay to her husband ? It has been held by the Supreme Court in construing section 53-503 of the Code of 1933 (Code of 1910, § 3007), which declares void any sale by a wife “of her separate estate” to a creditor of her husband in extinguishment of his debt, that money belonging to the wife and paid by her in extinguishment of her husband’s debt was a sale of her separate estate. Humphrey v. Copeland, 54 Ga. 543. It is there stated that “the Code, in declaring a sale void when made by the wife to a creditor of the husband in payment of his debt, comprehends, in its reason and spirit, a transaction in money, as well as a transaction in property.” There is no difference in the meaning of the phrase “separate estate” as used in section 53-504 of the Code of 1933 (Code of 1910, § 3009) and its meaning as used in section 53-503 of the Code of 1933 (Code of 1910, § 3007). A note executed by the wife to the husband for the purchase-money of land sold by the husband to'the wife is a contract by the wife to sell her separate estate to her husband, the separate estate being the amount of money belonging to the wife which she in the note contracts to pay. See Webb v. Harris, 124 Ga. 723, 733 (53 S. E. 247), where it is held that “a transfer by a married woman to her husband of a bond for titles, upon the consideration that he carry out her obligation as to the payment of the debt therein referred to, is a sale by the married woman of her separate property, and is invalid in the absence of an order of the superior court of her domicile, allowing the same.” See Chappell v. Boyd, 61 Ga. 662 (3); Booker v. Worrill, 55 Ga. 332 (2). The object of this inhibition upon the wife’s capacity to contract as provided in this code section is to protect the wife from being overreached and mulcted of her property by her husband. This can be prevented only by making invalid any contract by the wife to convey or sell any of her property, including money, to the husband, except on the condition prescribed in the code section. It is therefore clear that the note made by the wife to the husband for the purchase-money of land sold by the husband to the wife, is invalid where the transaction is not sanctioned by an order of the superior court.

It has been held in numerous decisions by the supreme court that a plea of coverture by the wife is personal and can not be made by a stranger to her title or persons who are not in privity with her in blood or estate. The wife’s coverture can not be asserted by one who claims adversely to her, land conveyed to her by the husband. Scaife v. Scaife, 134 Ga. 1 (67 S. E. 408). It can not be asserted by a creditor of the husband who has levied upon the land. Williams v. Rhodes, 149 Ga. 170 (99 S. E. 531). Nor by the heirs of the husband in an action to recover the land from one holding under the wife. Munroe v. Baldwin, 145 Ga. 215 (3) (88 S. E. 947). Nor by the husband against the heirs of the wife. McArthur v. Ryals, 162 Ga. 413 (134 S. E. 76). Nor by the wife’s creditor where the wife had conveyed the land to her husband. Royster Guano Company v. Odum, 167 Ga. 655 (146 S. E. 475). See also Hawes v. Glover, 126 Ga. 305 (55 S. E. 62); Palmer v. Smith, 88 Ga. 84 (13 S. E. 956); Georgia Casualty Co. v. McRitchie, 45 Ga. App. 697 (166 S. E. 49).

An heir stands in privity in blood to the ancestor. “A privy in blood derives his title by descent.” 50 C. J. 408. Privity in estate is where one derives his title to property by purchase. 50 C. J. 407. While the plea of coverture of the wife can not be asserted by strangers to the title or by persons not in privity with her in blood or estate, it can be asserted by the personal representative of her estate as against contracts made by her. 24 C. J. 753. As is stated in Morris v. Murphey, 95 Ga. 307, 310 (22 S. E. 635, 51 Am. St. R. 81). “The administrator is in law the personal representative of the deceased. He is, for all practical purposes involving the administration of his affairs, a legal substitute for the deceased. . . No person other than he, for and on behalf of the estate, can in his own name as matter of right prosecute or defend a suit in which his estate is interested as plaintiff on the one hand or defendant on the other. The administrator with respect to such matters stands upon the same footing as the deceased.” In Baker v. Garris, 108 N. C. 218 (13 S. E. 2), it was held that the executor of a married woman might plead the coverture of the testatrix. The plaintiff, who is the transferee of the note, not being a holder in due course, is subject to the defense of the wife’s coverture. The defendant’s plea set up a good defense, and the uncontradicted evidence demanded the verdict as directed. The court did not err in overruling the demurrer to the plea and the motion for new trial.

Judgment affirmed.

Sutton, J., concurs. Jenlcins, P. J., dissents.