Thrift Credit Union v. Moore

Carlisle, J. 1. “The law positively forbids any assumption by a wife of the debts of her husband . . . [Code §§ 2-2801, 53-502, 53-503] ; and if a creditor of the husband receives in payment of his debt money of the wife, knowing it to be hers, the wife can recover of the creditor the amount so paid. Humphrey v. Copeland, 54 Ga. 543; Chappell v. Boyd, 61 Ga. 662; Maddox v. Oxford, 70 Ga. 179.” Lewis v. Howell, 98 Ga. 428, 431 (25 S. E. 504); McRitchie v. Atlanta Trust Co., 170 Ga. 296, 301 (152 S. E. 834). The petition alleged that the money which she paid over to the defendant was a part of her separate estate, which was known to the defendant, and the petition therefore stated a cause of action. 2. But it is contended by the defendant that since the plaintiff paid the money to suppress a criminal prosecution, which is illegal, she should not be permitted to find relief in the courts but should be left where found, without clean hands. We recognize the well-established rule that parties who voluntarily enter into contracts to suppress criminal prosecution are in pari delicto and neither a court of law nor of equity will interpose to give relief to either party. Jones v. Dannenberg, 112 Ga. 426 (37 S. E. 729); Been v. Williams, 128 Ga. 265 (57 S. E. 427); Sanders v. McKee, 145 Ga. 507 (89 S. E. 484); Howell v. Fountain, 3 Ga. 176 (46 Am. D. 415). That rule applies where the parties are shown to be equally at fault. Hodges v. Citizens Bank of Sylvania, 146 Ga. 624, 628 (92 S. E. 49). Where, however, the defendant made threats to have her husband criminally prosecuted for a misappropriation of the defendant’s funds unless she consent to a sale of a part of her separate estate and deliver the proceeds to the defendant to be applied against the debt due by the husband on account of the misappropriation, there is duress as to the plaintiff wife and the law will not deem her to be in pari delicto with the defendant so as to deny her relief in recovering a part of her separate estate which was, with the knowledge of the defendant, applied on her husband’s debt. Harris v. Webb & Rutledge, 101 Ga. 84 (28 S. E. 620); Hodges v. Citizens Bank of Sylvania, supra; Colclough v. Bank of Penfield, 150 Ga. 316 (103 S. E. 489). The trial court did not err, therefore, in overruling the demurrer to the petition. Judgment affirmed. Gardner, P. J., and Townsend, J., concur. [93] The defendant corporation demurred to the petition on the grounds that it set forth no cause of action, that aside from the conclusions of the pleader no sufficient facts are alleged upon which to base a claim against the defendant, that it fails to allege any fact showing that the defendant is indebted to the plaintiff in the sum of $5,250 or any other sum, and that it affirmatively appears that the defendant is not indebted to the plaintiff. The trial court overruled the demurrer on each and every ground and the defendant excepted, assigning error upon that judgment.