Palmer, Stuart & Co. v. Smith

Simmons, Justice. 1. Under the facts reported, the judge directed the jury to return a verdict in favor of Smith, the defendant, on the ground that the deed put in evidence from Walls and his wife to Palmer, Stuart & Co. was made by Mrs. Walls in payment of her husband’s debts, and wa's therefore void under our code, and that Smith, the defendant, could plead this fact. The record does not show that Smith was privy in blood or estate to Mrs. Walls. Where a married woman having a separate estate conveys her property to a third person in payment of her husband’s debts, and afterwards seeks to recover the property or to cancel the deed, the deed will be declared void, on her motion, as against all persons who had notice that it was made for such purpose. But where she has conveyed her separate estate in payment of her husband’s debts, to one party, and another party is in possession of the property who is not in privity with her in blood or estate, and is sued therefor by the vendee of the wife, the defendant cannot set up in his defence that the deed is void because made in payment of the husband’s debts. This plea of the wife is a personal privilege, confined to her or her privies, and if she or they do not set it up, no stranger has the right to do so. The property conveyed by her under such circumstances belongs to her, and if she honestly wishes it to remain in the hands of her vendee in payment of her husband’s just debts,'and does not choose to claim it for herself, what right has a stranger who does not hold under her to set up this defence and put her money into his pocket ? The plea of infancy is a 87 personal privilege, and no one but the infant can avail himself of it. The plea of usury is also a personal privilege, and no one but the party promising usury, or his privies, can take advantage of it, except in cases of insolvency. We think the plea of coverture is also a personal privilege to the wife, and can avail no one except herself and her privies. We therefore hold that under the facts as disclosed by the record, the deed from Walls and wife to Palmer, Stuart & Co. was not void as between these parties. Zellner v. Mobley, 84 Ga. 746; Sutton v. Aiken, 62 Ga. 741; 1 Wait’s Actions and Defences, 157; Johnson v. Jouchert, 8 Lawy. Rep. Annot. (Ind.) 797-8; Bennett v. Mattingly, 110 Ind. 197; Ætna Ins. Co. v. Baker, 71 Ind. 103. 2. The deed above referred to contained the following clause : “ The said premises described having been recently set apart as a homestead by the ordinary of Pulton county, Georgia, to wit, in the month of April, 1869.” Counsel for the defendant in error contended that “this was homestead property, and ejectment could not be maintained upon that deed. Plaintiffs are seeking to recover homestead property on that deed, and the constitution of 1868 denied to the court the power of rendering or enforcing such a judgment.” Under the facts reported, the principle contended for does not apply. The evidence does not show to whom or out of whose property the homestead was set apart. It does not show that Walls and his wife ever occupied the land as a homestead, nor does it show that they ever resided in the State of Georgia, but we can infer that if they ever did reside in Georgia, they had removed to the State of Alabama, because the deed in controversy was executed in that State, and the two letters from Walls; the husband, attached to the motion for a new trial, show that he is still in Alabama. If they had never resided in this State, no homestead could have 88 been set apart to them under its laws. If they had had a homestead set apart to them and removed from this State to another, under the reasoning of the decision in the case of City Bank v. Smisson, 73 Ga. 422, they lost their homestead rights in the property. If the property was the wife’s, the homestead could not have been set apart to her out of it. We think, therefore, that the facts as disclosed by the record could not defeat the deed as a conveyance of the wife’s prior title to the premises. Judgment reversed.