Sams v. Thompson Hiles Co.

Lumpkin, P. J. The nature of this ease is sufficiently indicated by the headnotes. Obviously, it is not one falling under the statute which declares that gifts of property by insolvent debtors are void as to creditors, for there was no proof that the defendant in execution was insolvent or that he “turned over” the land to his wife or allowed her the use of it with a view to ■defrauding his creditors; nor did he “ give ” her anything upon which, as his property, an execution could have been levied. It is equally clear that this is not a case to which the decision in Wood v. Machine Co., 76 Ga. 104, to the effect that prior to 1866 the earnings of a married woman who was not a free trader belonged to her husband, is applicable. It is also apparent, we "think, that the ease in hand is essentially different from that of Lee v. Guano Co., 99 Ga. 572, laying down the doctrine that a married man is by law entitled to the services of his wife, so far .as relates to the performance of her ordinary household duties, .and that she can not make against him a charge for such services and thus become a creditor in satisfaction of whose claim a conveyance of realty from him to her would be good against those to whom he was really indebted. In the opinion delivered in that case, it was remarked that the court was not dealing with “the question of the husband’s appropriation of money made by his wife as earnings from work or labor performed in spheres •entirely outside of her household duties and obligations,” and further that “ such earnings are oftentimes exclusively her own; uertainly so, when her husband expressly consents to her engaging in the occupation or business from which they are realized.” Even before the passage of the “married woman’s act” of 1866, this court held that a wife, with or without the assent of her husband, might devise by will, as her separate estate, realty purchased with her earnings derived from an independent business carried on by her with his consent. Cavenaugh v. Ainchbacker, 36 Ga. 500. Since the passage of that act, the status of married women as factors in the world of business has been fully and uniformly recognized. This court is thoroughly committed to the doctrine that a wife may acquire a separate estate by making contracts and carrying on an occupation in her own name and on her own account. See Hays v. Jordan, 85 Ga. [650] 741; Schofield v. Jones, Id. 816. It was in these cases distinctly ruled that, under the act mentioned, a married woman may engage in business and by so doing acquire and hold property as her own. This court has in many instances followed the doctrine thus established, and has not, so far as we are aware, ever departed from it. Applying that doctrine to the case before us, the wife was entitled to the crop which she made in the farming enterprise carried on with the labor of herself and her children. The evidence did not warrant a finding that this enterprise was really that of her husband, ostensibly conducted in the wife’s name. While certain facts and circumstances in proof, had they been unexplained, might have warranted an inference that such was the case, they were explained fully and satisfactorily by the affirmative and uncontradicted evidence of the plaintiff’s witness. As the burden of proof was on the plaintiff, and as the evidence did not show that the property levied on belonged to the defendant in execution, but the contrary, the verdict finding the.property subject was unwarranted and the court ought to have set it aside. Judgment-reversed. All concurring, except Fish, J., absent.