Mickleberry v. O'Neal

Atkinson, Justice. The questions of practice made by the record in this case do not require further consideration than as expressed in the head-notes. Iliram O’Neal conveyed to his wife the premises in dispute, as she claims, in exchange for certain property to which she held the title and which was her separate estate. They were engaged, each independently of the other, in busi- ■ ness, he in the business of grading streets and town lots, and she in running a small store. In the conduct of his business., he bought certain goods and incurred certain indebtedness to the defendants, in which she had no interest. Some of ’ the goods bought by him were brought to her store for convenience in delivering them to the laborers employed by ■ him in his business, he using a part of the store occupied by her as a commissary. At the time Hiram O’Neal conveyed to his wife the property in controversy, it was subject to a lien for certain moneys advanced to her husband. He failed to pay the defendants the sum due them for goods, became otherwise seriously involved, and then induced her ■ to make the conveyance now sought to be set aside, they, the defendants, paying off the lien above referred to> and receiving the conveyance in settlement of the amount thus advanced and also of the sums for which her husband was [51] indebted to the defendants. Afterwards she filed the pro-. ceeding under which the questions now here for review arose, and prayed that the conveyance to the defendants be set aside, upon the ground that it was made in payment, of her husband’s debt, and offering to submit to a decree imposing upon the property involved a lien in favor of the defendants to the extent of the sum advanced by them in discharging the lien above referred to. It was insisted by the defendants that the property conveyed to them was really the property of Hiram O’Neal, and not the property of his wife, and therefore the conveyance to them was good any way; that the whole transaction as between the husband and wife was colorable merely, and that if this were not true, then in mailing the purchase of the goods he was really h er agent, that the debt was her own and not his, and therefore the conveyance should be upheld. We have carefully examined the evidence which comes to us in the record, and are unable to find anything which would seem to satisfactorily impeach the bona fides of the transaction between these parlies. Even a husband and wife in their dealings with each other may be honest, and however closely transactions between them should be scanned, they are not to be impeached upon suspicion alone; and hence we are not disposed to interfere with the circuit judge in refusing to set aside the verdict, upon the ground that the transaction was fraudulent. A husband may be the agent of his wife. If he professes to act as her agent, those dealing with him are bound to inquire as to his authority to act for her. They may both occupy the same house. The law rather encourages such a course. She may even permit him to store his goods in her house without subjecting her separate estate to the payment of his debts, and without inclining the danger of having him treated as her general agent to' buy. In the present case, while there is ample evidence in the record showing the sale of the goods by the defendants to Hiram O’Neal, and while it is claimed by them that in a general [52] sense the goods were sold for use in the store of his wife, it is abundantly shown that she had no connection with the business in which the goods were used; had not authorized him to buy them in her name; had no notice that he professed to act as her agent in the matter, and had never gotten or taken the benefit of the purchases. The credit was extended to him alone, and hence this is not a case for holding her as an undisclosed principal. Before she can be bound by his act, he must really act for her. If an agent profess to act for himself, but in the consummation of a given transaction really acts for and on account of another who knowingly receives the benefit of the transaction, or who without the knowledge of the other party has authorized the professed agent to contract for him, when the fact of agency is discovered, the person to whom the obligation of the undertaking is due may resort to the undisclosed principal for redress. In the present case, however, the jury upon proper instructions and satisfactory evidence found adversely to the contention of the defendants that the husband of the plaintiff was her agent, and we are not disposed to interfere. A married woman, notwithstanding her practical emancipation by the act of 1866 and the provisions of our lawr which recognize her separate civil rights, is nevertheless under the disability of being unable to enter into any agreement by which she either assumes or becomes answnrable for the debts and defaults of her husband, or by which she undertakes to convey her own property in satisfaction or extinguishment of his debts. ' No contractj however solemn may be the form of its execution, nor how positive its recitals, if entered into for either of these purposes, creates a charge upon her estate. With respect to such matters, she is under a disability imposed by law which renders her unable, however willing she may be, to contract, and of which she cannot by any agreement divest herself; and hence, wanting the capacity to convey her estate for these pur [53] poses, the agreement is wanting in the prim© prerequisite to its legal execution: and that is, a person able to contract. In such transactions, the law, as in cases of usury and in all others where a contract is denounced by express legislative enactment, will look beneath the superficial exterior and determine for itself whether the contract, seemingly legal, is based upon an illegal consideration, or is executed in furtherance of a scheme prohibited by law. The law in such matters will not permit a wife to conclude herself by deed, but will look to the bottom of the transaction and grant relief without reference to the degree of solemnity which may attend upon the execution of the instrument by which it is sought to carry such agreements into execution. The principle here contended for is clearly stated in the case of First National Bank v. Bayless, 96 Ga. 684. In that case it was held by this court, that a wife’s property could not be subjected to the payment of her husband’s debts, even though she executed a mortgage upon her own property under the impression that it was in some way subject to such debt, and in fact executed the instrument for the purpose of effecting a compromise of a doubtful claim against her own estate. In the present case the deed in question was executed by her as an entire transaction, the vendee undertaking to and actually discharging an encumbrance upon the property purchased by her from her husband, and which encumbrance became, not by assumption of his debts but by relation, a legal charge upon her estate. Had this been the entire consideration, the conveyance could have been upheld as valid. But the real object of the conveyance was to appropriate the value of the property conveyed, in excess of the amount represented in the encumbrance discharged, to the payment of the sums due by the husband of the vendor to the vendee, thus conveying her estates partially in satisfaction of the husband’s debt. The deed is thus an entire transaction. As a conveyance of title it cannot be upheld, [54] because of the impossibility of separating that -which is legal from that which is illegal. It is not the case of a mortgage given to secure several debts, some of which are legal and some illegal, and in which that which is legal may be cut off from that which is illegal; but it is a case in which the whole transaction is so- infected with the virus of illegality, that there is no possibility of upholding the deed executed in pursuance of it as a conveyance of title, and the most that can be done is to award, as was done in this case, that in so far as the plaintiff has extinguished that portion of the debt legally due by the wife, it be made a charge against her estate. Judgment affirmed.