Gholston v. Gholston

McCay, Judge. At the date of the institution of this suit, the law regulating the rights of the parties as to the property, was the act of 1806: Cobb’s Digest, 224, 225. By that act it provided that after the payment of the debts, the property “shall be subject to an equal division between the children of such parties, except the jury shall think proper to allow either party a part thereof. Under this statute, up to the adoption of the Code, the uniform ruling was, that the whole subject was open to the jury. By the Code of 1863, as was held by this court in Odom vs. Odom, 36 Georgia, 319, this rule was changed, and under the law since the Code, the jury can only give the wife alimony, and that is defined in 1736, and other sections, as a provision for the support of the wife at most for her life. The sole question in this case is, whether the provisions of the Code apply to this case, pending as it' was at the time of the adoption of the Code. There is nothing in the language of [286] any of the sections of chapter 1, section 3, part 2, of the Code, declaring it to be retroactive; and section 2 of the preliminary provisions of the Code declares that “all rights, obligations, or duties, acquired or imposed by existing laws, shall remain valid and binding, notwithstanding the modification or repeal of such laws” (by this Code.) Under this section, we think it is plain that the rule of law regulating the rights of these parties, at the date of the institution of the suit, was the rule for the government of the jury in the distribution of the property. We do not say it was Dot competent for the legislature to alter it, but we think it clear that it was not the intent to do so. The plain common sense meaning of the verdict is to declare that the land shall be the property of the wife. In Odom’s case, the court construed the verdict to give her only a life estate, though that was not expressed, but it did so because, under the law, as it then stood, it was not competent for the jury to do more. But ordinarily, in this state, even in a deed such words would convey a fee: Code, sec. 2248. • As we think the jury might, under the law, have made such a verdict in- the divorce suit, we feel that it ought to have the legal effect flowing from such words. Judgment affirmed.