Lapas attēli
PDF
ePub

(107 Ga. 775)

HAIRE v. McCARDLE. (Supreme Court of Georgia. June 2, 1899.) DIVORCE CUSTODY OF CHILDREN-CERTIORARI-COSTS.

1. On the trial of a habeas corpus suit by the wife against her husband for the custody of minor children under the age of 12, it was error for the court to reject an amendment offered by the defendant to his answer charging, in effect, that the minor children sued for were being reared by the mother under immoral, obscene, and indecent influences, likely to degrade their moral characters and devote them to vicious lives, notwithstanding the fact that the wife had previously recovered in a suit for divorce a judgment or decree of the court awarding her the possession of these children.

2. Where a petition for certiorari has, on the final hearing, been sustained by the judge of the superior court, and another trial ordered, only such costs as have accrued in the superior court should be adjudged against the defendant in favor of the plaintiff in certiorari. Direction is therefore given that the portion of the judgment awarding costs other than those above designated be written off.

(Syllabus by the Court.)

Error from superior court, Chattahoochee county; Z. A. Littlejohn, Judge.

Habeas corpus by Ida Haire against C. L. McCardle. Judgment for the petitioner was reversed on certiorari, but costs were awarded against defendant, and he brings error. Affirmed, with directions.

W. H. McCrory, for plaintiff in error. E. J. Wynn, for defendant in error

SIMMONS, C. J. Mrs. McCardle brought an action for divorce against her husband, C. L. McCardle, and a divorce was granted her. In the decree the judge awarded her the custody of the children. She subsequently married Haire. The decree in the divorce proceedings allowed the father to visit the children, but the mother preferred, instead, to send the children to visit the father. On one occasion, when two of them, under the age of 12, were so sent to visit the father, the latter refused to return them, whereupon the mother sued out a writ of habeas corpus to obtain possession of the children thus detained. On the trial before the ordinary the father sought to amend his answer to the writ by alleging that the minor children sued for were being reared by the mother under immoral, obscene, and indecent influences, likely to degrade their moral characters and devote them to vicious lives. The ordinary refused to allow this amendment, and awarded the children to the mother. McCardle sued out a writ of certiorari from the superior court, and on the hearing in that court the judge thereof overruled the decision of the ordinary, and held that he erred in refusing to allow the amendment to the answer. He directed that the defendant in certiorari pay the costs of taking the case to the superior court, and all the costs that accrued in that court. To this ruling and judgment the defendant in certiorari excepted.

1. The judge of the superior court was clearly right in reversing the judgment of the ordinary, and in allowing the amendment offered by McCardle in the trial of the habeas corpus case. Section 2505 of the Civil Code provides that "whenever any child under the age of twelve shall be brought before the ordinary of the county of such child's residence, upon the sworn allegation of any citizen * that such

child is being reared up under immoral, obscene or indecent influences, likely to degrade its moral character and devote it to a vicious life, and it shall appear to such ordinary by competent evidence, including such examination of the child as may be practicable, that by reason of the neglect, habitual drunkenness, lewd or other vicious habits of the parents or guardians of such child, it is necessary to the protection of such child * from degradation that such parents or guardians shall be deprived of the custody of such child, such ordinary may commit such child to any orphan asylum or other charitable institution established according to law in this state which is willing to receive such child, or appoint a proper guardian therefor, or make such other disposition of them as now is, or may hereafter be, provided by law in cases of disorderly, pauper, or destitute children." Under this section any citizen, if he knows that young children are being reared under these improper influences, may make a sworn statement of the facts, and the ordinary is authorized to take the children away from their parents or guardians, and make such disposition of them under the law as he may think proper. Had these children been in the custody of their mother, the father or any other citizen could have made these allegations, and, under proper proof of the ordinary, could have deprived the mother of their custody. The fact that she sued out the writ of habeas corpus, and that the father was the defendant therein, did not, in our opinion, prevent his amending his answer so as to make these allegations. Any citizen in whose custody the children had been could have defended such a suit of habeas corpus by making this kind of return in answer to the writ. The right to make this defense could be exercised by McCardle, not by reason of his being the father of the children, for the court had deprived him of all parental custody and control of them, but by reason of his being a citizen of the state and county. The Code gives this right to any citizen, for the purpose of protecting young children in their health and morals; and we see no reason why the father could not, as a citizen, make this defense, as well as any other citizen; nor do we see why it could not be set up by way of defense, by a citizen who had custody of the children, in answer to a writ of habeas corpus.

2. The court, in sustaining the certiorari

and ordering a new trial, gave judgment in favor of the plaintiff therein for the costs of taking the case to the superior court, and for the costs in that court. Section 4655 of the Civil Code allows this only when the judge of the superior court makes a final disposition of the case. "If the certiorari shall be returned to the court below for a new hearing, the plaintiff shall sign up judgment for the costs in said superior court only, leaving the costs paid to obtain the certiorari to abide the final trial below." Under this provision of the Code, the court erred in its judgment as to costs; and it is directed that so much of the judgment as requires the defendant to pay the costs of taking the case to the superior court be stricken, and the judgment then stand afArmed. Judgment affirmed, with direction. All the justices concurring.

(107 Ga. 772)

BULLARD et al. v. BANK OF MADISON. (Supreme Court of Georgia. June 2, 1899.) CASH SALE-CONVERSION-WAIVER. Where a planter sold cotton "on cash sale," and the purchaser, without paying for the same, sold it to another, and the planter, with full knowledge of such conversion, took from the person to whom he had sold the cotton for cash his note covering the value of the cotton converted, this was such an abandonment of the cash sale, and such a ratification of the disposition which had been made of the cotton, as released the original purchaser, and all who claimed under him, from liability for any conversion of which they may have been guilty.

(Syllabus by the Court.)

Error from superior court, Morgan county; John C. Hart, Judge.

Action by H. W. Bullard and others against the Bank of Madison. Judgment for defendant, and plaintiffs bring error. Affirmed.

Q. L. Williford, Fleming Jordan, and George & George, for plaintiffs in error. Foster & Butler, for defendant in error.

FISH, J. Plaintiffs brought trover for certain cotton against the Bank of Madison. The evidence for the plaintiffs was to the effect that they were planters, and sold the cotton to Tweedy at a given price "on cash sale"; that he, without paying for the same, sold it, and drew a draft on the purchaser for the price thereof, payable to the bank; that he delivered to the bank this draft, with a bill of lading for the cotton attached, the draft having been indorsed by him to the bank; that the bank collected the draft, and credited him with the proceeds thereof; that, after the plaintiffs ascertained that Tweedy had sold the cotton, they took from him certain notes and mortgages to cover all he owed them, including the indebtedness for this cotton. A nonsuit was granted, and the plaintiffs excepted. From the view we take of the case, it is unnecessary to determine whether the evidence was sufficient to author

cotton; for while, under section 3546 of the Civil Code, the cotton, under the cash sale, did not become the property of Tweedy, by reason of his failure to pay for it, yet when the plaintiffs, with full knowledge that he had converted it to his own use, subsequently took his notes, secured by mortgages, to cover what he owed them for it, this was such an abandonment of the sale for cash, and such a ratification of his disposition of the cotton, as relieved him, and all claiming under him, from liability for any conversion of which they may have been guilty. This last contract really amounted to a sale on credit to Tweedy, passing the title to him, and, through him, to all who held under him. Railway Co. v. Kinchen, 103 Ga. 186, 29 S. E. 816. There was no error in granting the nonsuit. Judgment affirmed. All the justices .concurring.

(108 Ga. 784)

EDWARDS et al. v. BIBB LAND-LUMBER CO.

(Supreme Court of Georgia. June 10, 1899.) NONSUIT.

There was no error in admitting or rejecting evidence, and, the plaintiffs having failed to establish the allegations of their petition, there was no error in granting a nonsuit. (Syllabus by the Court.)

Error from superior court, Dodge county; O. C. Smith, Judge.

Action by M. H. Edwards & Bro. against the Bibb Land-Lumber Company. From a judgment of nonsuit, plaintiffs bring error. Affirmed.

D. M. Roberts and W. M. Clements, for plaintiffs in error. Olin J. Wimberly and J. E. Wooten, for defendant in error.

[blocks in formation]

SMITH V. BELL. (Supreme Court of Georgia. June 7, 1899.) EXECUTION-AMENDMENT-CONTINUANCE 1. An execution in which no person is named as plaintiff, but regular in all other respects, is not void, and the officer issuing the same may amend it by inserting the name of the plaintiff in the judgment upon which the execution was issued, and such an amendment will not cause the levy to fall.

2. Whether the trial of a claim case shall be suspended in order to allow the execution to be amended is a question addressed to the discretion of the presiding judge.

(Syllabus by the Court.)

Error from superior court, Henry county; W. A. Brown, Judge pro hac.

Action by Castellaw & Colvin against S. S. Kendrick. Judgment for plaintiffs. Execution assigned to J. E. Smith, and on levy J. B. Bell interposed a claim. Judgment for claimant, and Smith brings error. Reversed.

B. P. Bailey and J. F. Wall, for plaintiff in error. W. H. Beck and O. H. B. Bloodworth,

ize a fluding that the bank had converted the for defendant in error.

COBB, J. Castellaw & Colvin recovered a judgment at the February term, 1897, of a Justice's court against S. S. Kendrick. On February 4, 1897, the justice issued an execution against Kendrick, which followed the Judgment in all respects except that no person was named therein as plaintiff. Indorsed upon the execution was the number of the district, the names of the plaintiffs and defendant in the judgment, the amount of the principal and interest of the judgment, and a bill of costs.

This execution was transferred

by Castellaw & Colvin to J. E. Smith, and, after such transfer, was levied upon certain personal property to which a claim was interposed by J. B. Bell. When the case came on for trial in the superior court on appeal, Smith, the transferee, offered in evidence the execution above referred to. Upon objection being made to the same by the claimant, the transferee moved to amend it by inserting therein the name of Castellaw & Colvin as plaintiffs, and thus make the execution conform to the judgment. To this motion the claimant objected upon the ground that an execution issued by a justice of the peace could not be amended after it had reached the superior court on appeal. This objection was sustained by the court, and the motion to amend overruled, and this ruling is assigned as error. Smith then made a motion to allow the justice who issued the execution to amend the same by inserting therein the name of the plaintiffs in the judgment; such justice being present in court with his docket, upon which the judgment above referred to appeared, and having been allowed to testify that the execution was issued on the judgment referred to, and that the name of the plaintiffs was omitted from the execution by a mistake on his part. To this motion the claimant also objected upon the ground that the execution was fatally defective, and could not be amended in the superior court. The court sustained the objection, and overruled the motion to amend, and this ruling is assigned as error. The court then, on motion of claimant, excluded the execution, and dismissed the levy, and this ruling is also assigned

as error.

1. The question presented for determination in this case is whether an execution, regular in all respects except that no person is named therein as plaintiff in the judgment upon which it was issued, is absolutely void, or merely irregular, and hence amendable. We do not find any case decided by this court in which this exact question was passed upon. The Code declares that "all executions must follow the judgment from which they issued, and describe the parties thereto as described in such judgment." Civ. Code, § 5417. There are numerous cases cited under the section just quoted which establish the proposition that, if there is some one named in the execution as plaintiff in the judgment, a misdescription in the name of the plaintiff will not invalidate the execution, when it can with rea

sonable certainty be ascertained from the terms of the execution that it was issued upon the judgment with which it is sought to connect it. It is also settled by a decision of this court that an execution in favor of an entirely different person from the one named in the Judgment as plaint is void. Underwood v. Harvey (Ga.) 32 S. E. 124. See, in this connection, Blanchard v. Blanchard, 25 N. C. 105. It is absolutely essential that the execution should be connected with the judgment; the latter being the only authority for the issuance of the former. 1 Freem. Ex'ns, § 43. Where, upon an inspection of the execution, enough appears upon its face to connect it with the judgment, a variance between the judgment and execution will not vitiate the latter, and this is the reason at the foundation of the decisions above referred to holding that a mere misdescription of the parties to an execution is not a fatal defect. Where the execution shows on its face that it is not connected in any way with the judgment, and could not possibly be connected with it if the parties therein described are correctly named, such execution would be without authority, and void. For this reason the ruling was made in Underwood v. Harvey, supra, that a judgment duly entered in the name of the state would not support an execution issued in favor of a designated person who was not a party to the judgment. A judgment in favor of one person is certainly no authority for a process to issue in the name of another person; and such an execution, being on its face entirely disconnected with the judgment offered to support it, cannot be shown to have been in fact issued on such judgment, although it was so intended by the officer who issued it. An execution which is complete on its face cannot be shown to refer to a judgment other than one which would authorize such an execution to issue, and hence a perfect execution, purporting to have been issued on a judgment in favor of one party, can never be shown to have in fact issued upon a judgment in favor of another party. But such is not the case when the execution is incomplete. An imperfect execution may be made perfect by amendment. A perfect execution needs no amendment. It needs only the production of the judgment referred to therein in order to show that it is of vital force. An execution issued by an officer having authority to issue the same, regular upon its face in all respects save that the name of the plaintiff in the judgment is omitted, may be amended by supplying the omission upon its being shown that a judgment was rendered in favor of such party for the amount specified in the execution. Such an execution is not materially variant from the judgment, but simply on account of the omission fails to connect itself with the judgment; and this may be done by parol. In such case the parol evidence is not offered to change the parties to the execution, and to make a paper purporting to have been issued on one judgment really an

execution on another judgment, but it is offered to show that a paper incomplete on its face is really supported by a lawful judgment. When thus shown to have issued upon a valid judgment, the clerical omission could be cured by an appropriate amendment; and especially would this be true where, upon the back of the execution, is indorsed, in connection with the bill of costs, which the law requires to be there placed, the names of the parties to the judgment upon which the execution was issued. Civ. Code, § 5394. The omission referred to in the present case was a mistake or misprision of the officer issuing the execution, and could be cured by an appropriate amendment being made by him at any time that the same was called to his attention (Id. §§ 5115, 5125); and such an amendment would not, under the present law, cause the levy to fall (Id. § 5114). The conclusion reached by us in the present case is supported by the cases of Porter v. Goodman, 1 Cow. 413, and McGuire v. Galligan, 53 Mich. 453, 19 N. W. 142. See, also, 8 Enc. Pl. & Prac. 418 et seq.; Stewart v. Severance, 43 Mo. 322; 1 Freem. Ex'ns, § 43. A conclusion to the contrary was reached by the supreme court of Alabama in the case of Cooper v. Jacobs, 82 Ala. 411, 2 South. 832, but we think the better view is stated by the supreme courts of New York and Michigan in the cases cited supra. There is nothing in the case of Ramsey v. Cole, 84 Ga. 147, 10 S. E. 598, in conflict with what is here ruled. That case was dealing with judgments, and not executions. An irregular judgment can only be amended in term time by the court which rendered it, but the rule is otherwise as to incomplete executions. They may be amended at any time. Civ. Code, § 5115.

2. The application to amend the execution was made during the progress of the trial. The plaintiff in execution in a claim case cannot, as a matter of right, have the trial suspended in order to allow him to amend his execution, even though the justice of the peace who issued it may be in court with his docket, but such applications are addressed to the sound discretion of the presiding judge. In the present case the judge suspended the trial for the purpose of allowing the amendment to be made if it could be lawfully done, and then refused to allow the amendment upon the ground that the execution was void, and therefore not amendable. In this conclusion we think he erred. Judgment reversed. All the Justices concurring.

(107 Ga. 472)

TOOLE v. TOOLE et al. (Supreme Court of Georgia. May 29, 1899.) VOLUNTARY DEED-RECORD-PREFERENCES

EVIDENCE.

1. Construing together sections 2778, 3530, and 3618 of the Civil Code, a voluntary deed, though duly recorded, and taken without notice of a prior voluntary deed executed by the same grantor and not recorded, does not give to the

[blocks in formation]

SIMMONS, C. J. The deed made by Dr. Toole to his first wife and children, assuming that it was delivered, conveyed all the title and interest he had in the land, and was a good and binding deed, as between him and them, although it had but one witness and was unrecorded. Howard v. Russell (Ga.) 30 S. E. 802. As he had thus parted with all title he had to this land, the voluntary deed which he subsequently made to his second wife conveyed no title to her, unless voluntary deeds, when in competition with each other, are governed by the provisions of the registry acts. If these acts are applicable to the present case, the law would put the title in the second grantee, whose deed was recorded, on the ground that the grantees in the first deed failed to record their deed. All the authorities, however, which we have read on the subject, declare that the purpose of the registry acts, relatively to the question in hand, is to protect bona fide purchasers for value. None of them, as far as we can find, has ever held that they were designed to protect the holder of a junior voluntary deed, though the same be duly recorded. There are three sections of our Civil Code bearing upon this subject, as follows:

"Sec. 2778. Deeds, mortgages and liens of all kinds, which are now required by law to be recorded in the office of the clerk of the superior court of each county within a specified time, shall, as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect only from the time they are filed for record in the clerk's office."

"Sec. 3530. Every voluntary deed or conveyance made by any person shall be void as against a subsequent bona fide purchaser for value, without notice of such voluntary conveyance."

"Sec. 3618. Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where the land lies. The record may be made at any time, but such deed loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first."

It is contended by counsel for plaintiff in

error that these sections are broad enough to protect grantees under voluntary deeds, because two of them declare, in substance, that all deeds must be recorded. It will be observed, however, that in the latter part of section 3618, where it provides a penalty for failing to record the first deed, it is declared that "such deed loses its priority over a subsequent recorded deed from the same vendor." The word "vendor" was evidently used with reference to a deed of bargain and sale based upon a valuable consideration. If it had been intended to include voluntary deeds, the word "grantor," and not "vendor," would have been used. We are strengthened in this view by the phraseology of section 3530, which makes every voluntary deed void as against subsequent bona fide purchasers for value, without notice of the voluntary deed. The expression of one thing excludes the other, and limiting the beneficial purpose of this section to subsequent purchasers for value excludes grantees under a subsequent voluntary deed to the same property. Section 2778 does not conflict with this idea. While it is as broad as section 3618 as to recording every deed, it protects only third parties, acting in good faith and without notice, who may have acquired a transfer or lien binding the same property. This, in our opinion, means that this third party must have acquired the transfer or lien for value and without notice. This section was not dealing with voluntary deeds, but left their status as it was at the time of the enactment of the statute from which this section has been codified. Construing all these sections together, we are of the opinion that they do not apply to a case involving a contest between two voluntary deeds, the older not recorded, and the younger duly recorded. The holder of the latter does not occupy the position of a bona fide purchaser, and, so far as we have been able to ascertain, this view is in harmony with all the text-books and decisions of this country. Webb, in his work on Record of Title (section 204), says: "The purchaser protected under the recording acts must be one who acquired his right for a valuable consideration. If he be a mere volunteer, whose title has been derived by gift, inheritance, devise, or some kindred mode, he does not come within the term 'purchaser,' as used in these statutes." In 20 Am. & Eng. Enc. Law, p. 590, it is said: "The recording acts were intended for the protection of those who should part with something of value, or suffer some loss, by reason of having acted upon the faith of a conveyance, and in ignorance of some prior transaction, which, in the absence of the operation of these provisions, would defeat the intended acquisition of some new interest. It is necessary that the subsequent purchaser, in order to be entitled to the protection of the recording acts, obtain his conveyance for a valuable consideration. This

would, of course, exclude a mere volunteer, who takes by gift, devise, inheritance, etc., from the benefit of these statutes." See, also, the cases cited. Pomeroy, in his Equity Jurisprudence (volume 2, p. 747), says: "No person who has acquired title as a mere volunteer, whether by gift, devise, inheritance, postnuptial settlement on wife or child, or otherwise, can thereby be a bona fide purchaser." See, also, 4 Kent, Comm. (14th Ed.) 549, 456. In the case of Way v. Lyon, 3 Blackf. 76, it was held by the supreme court of Indiana that "a voluntary conveyance of real estate, though not recorded as prescribed by statute, is valid against any subsequent voluntary conveyance of the property executed by the grantor." See, to the same effect, Snodgrass v. Ricketts, 13 Cal. 359.

2. There was uncontradicted evidence by one witness that the first deed was actually delivered. This witness was not impeached, and no attempt was made to impeach him. The grantor was introduced as a witness, and was allowed to testify, over objection, that when he gave this deed to his son he intended it as a delivery. Under the ruling in the case of Hale v. Robertson, 100 Ga. 168, 27 S. E. 937, and the cases there cited, it would seem that this evidence was admissible. But, whether it was or not, one wit ness, as before stated, had testified positively that the deed was delivered. Even if the evidence as to what the grantor said to his son was not admissible, we would not reverse the judgment on that point alone, especially as the question discussed in the first division of this opinion is, in view of the uncontradicted evidence above mentioned, controlling in this case. The grantor's wife was introduced for the purpose of contradicting him as to his intention to deliver the deed, and it was proposed to prove by her certain conversations had between them as they were looking over his papers, when he said that the deed made to his first wife and children was not worth the paper it was written on, and that he had never delivered it. This evidence was clearly inadmissible. because it undertook to give a confidential conversation between husband and wife. In the case of Stanford v. Murphy, 63 Ga. 411, this court held that "the wife is an incompetent witness for or against the husband in regard to any information derived from his confidence in her, and therefore she cannot testify in respect to papers consigned to her care by her husband, and kept exclusively by her under her own lock and key." In the opinion, Jackson, J., said, "Any confidential communication from husband to wife may not be divulged in any court, for the reason that the fact communicated was disclosed in the privacy of the marital relation, and the peace of the household might be disturbed if it were divulged." See, also, Civ. Code, § 5198, and cases cited.

The deed offered in evidence, and rejected

« iepriekšējāTurpināt »