Glover v. Summerour et al., executrixes

Supreme Court of Georgia1928-01-13No. No. 6287

165 Ga. 513

Summary · law.co

Holding. The judgment directing a verdict for the plaintiff was reversed and the case remanded because the trial court erred in refusing to submit to the jury the factual questions of whether the conveyance was a sale or gift, whether it was a colorable transaction designed to make the wife a surety, and whether the attorney was the lender's agent.

A married woman conveyed land to her husband, and the husband later pledged that land as security for a loan. The question arose whether this transaction was valid and who bore responsibility for the debt. Under Georgia law, a wife cannot sell land to her husband without court approval, making such transactions void. However, a wife may gift property to her husband if her intent to do so is clear and unequivocal. The court identified several competing issues: whether the wife's conveyance was a sale (which would be void) or a gift (which could be valid); whether the transaction was a scheme by the lender to make the wife an effective surety for her husband's debt despite not being formally bound (making it void as to her); and whether an attorney who arranged the transaction was acting as the lender's agent, whose statements about the arrangement could then be admitted as evidence.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a married woman's conveyance of land to her husband without court approval is void or voidable
Whether a deed reciting consideration constitutes a sale or gift when made by a wife to a husband
Whether a transaction where a wife conveys land to enable the husband to pledge it as loan security is void if it effectively makes her a surety
Whether an attorney's declarations are admissible when agency is otherwise established by circumstances and conduct

Procedural posture

The trial court directed a verdict for the plaintiff, and the plaintiff in error appealed that judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hines, J.

1. A sale and conveyance of her land by a married woman to her husband, without being allowed by an order of the superior court of the county of her domicile, is not only voidable but void. Civil Code (1910), § 3009; Echols v. Green, 140 Ga. 678 (79 S. E. 557).

2. Where a deed from a wife to her husband recites a valuable consideration, such deed upon its face is a contract of sale by the wife to the husband. Martin v. White, 115 Ga. 866 (42 S. E. 279) ; Shackelford v. Orris, 135 Ga. 29 (68 S. E. 838) ; Rich v. Rich, 147 Ga. 488 (3) (94 S. E. 566).

3. “A wife may give property to her husband, but a gift will not be presumed. The evidence to support it must be clear and unequivocal, and the intention of the parties must be free from doubt.” Civil Code (1910), § 3010; Cain v. Ligon, 71 Ga. 692 (51 Am. R. 281); Brooks v. Fowler, 82 Ga. 329 (9 S. E. 1089).

4. If a married woman conveyed land to her husband for the purpose of enabling’ him to pledge it to a third person as security for a loan by that person to the husband, and this was a mere colorable transaction growing out of a scheme proposed by the lender in order to make her in fact a surety for the husband’s debt, although she did not become nominally bound therefor, the transaction was, as to the wife, contrary to law and void. If on the other hand there was no element of suretyship in the transaction, and the wife deliberately conveyed the land to her husband simply to enable him to secure thereby his own debt for money borrowed, she is barred by her deed, if her conveyance was not a sale but in fact a gift. National Bank of Athens v. Carlton, 96 Ga. 469 (23 S. E. 388) ; Hawkins v. Kimbrell, 158 Ga. 760 (124 S. E. 351).

5. While an agency can not be established by proof of the declarations of the alleged agent, though made dum fervet opus (Williams v. Kelsey, 6. Ca. 365; Abel v. Jarratt, 100 Ga. 732 (28 S. E. 453) ; Franklin Lumber Co. v. Grady County, 133 Ga. 557 (66 S. E. 264) ; Robertson v. Byrne, 147 Ga. 329 (93 S. E. 895)), the fact of agency may be established by proof of circumstances, apparent relations, and conduct of the parties; and where the agency is otherwise prima facie proved, declarations of the agent become admissible against the principal. Jones v. Harrell, 110 Ga. 373 (35 S. E. 690); Cable Co. v. Walker, 127 Ga. 65 (56 S. E. 108); Weiner Brothers Co. v. Tucker, 139 Ga. 596 (77 S. E. 811). It follows that the court erred in ruling out declarations of the attorney who acted in this transaction in procuring the loan, preparing the papers, and applying the proceeds of the loan.

6. The issues, whether the conveyance from the wife to the husband was a sale or gift, whether the transaction was a colorable one proposed by the lender to make the wife in fact a surety for the husband, and whether the attorney was the agent of the lender in making the loan, should, under certain phases of the evidence, have been left to the jury; and the court erred in directing a verdict for the plaintiff. Hawkins v. Kimbrell, supra; Braswell v. Federal Land Bank, 165 Ga. 123 (139 S. E. 861). Judgment reversed.

No. 6287.

January 13, 1928.

J. P. Broolce, for plaintiff in error.

Isaac L. O alces and A. B. Tollison, contra.

All the Justices concur.