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Booker vs. Worrill.

the payment of that share, which is in the hands of the Messrs. Wadley alone.

5. In consequence of the consent arrangement first recited, the Messrs. Wadley, if in truth the complainant is a member of the firm in lieu of his father, can be made to answer by suit at law for any income from the railroad which they may wrongfully withhold, and to which he has right and title: 13th Georgia Reports, 451; Gow on Part., 11; Story on Part., section 192; 44th Georgia Reports, 454. With such a system of collection and division of profits, there is no occasion for going into equity to constrain payment; but in whatever forum brought, the suit for a share in one of these dividends, must, we think, be located in the county in which the Wadleys reside, (which seems to be Emanuel, not Burke, where the Messrs. Jones reside,) they being the real debtors and the only necessary defendants.

6. It may be said that the verdict rendered is for an amount admitted to be in hand, and therefore there would be no wrong done by leaving it to stand as against the Wadleys, setting it aside only as to the defendants, Jones: 49th Georgia Reports, 622. But courts administer legal justice, and that has relation to means and not alone to the end. It involves exemption from suit till there is a cause of action, location of suit in the proper county, and full and fair opportunity for trial before the tribunal which the law appoints to take cognizance of the case.

Judgment reversed.

ELIZABETH BOOKER, plaintiff in error, vs. EDMUND H.

WORRILL, defendant in error.

55 332 57 239 72 13

1. A husband may be indebted to the wife for the rents of her separate real

estate, and such bona fide indebtedness is a valuable consideration to sup

port a deed from him to her. 2. A husband may make a deed in Georgia directly to his wife, and such

deed is valid without the intervention of a trustee.

Booker vs. Worrill.

3. In a contest between the wife as claimant of the property so conveyed,

and other creditors of the husband, the questions are as to the bona fides of the indebtedness of the husband to his wife, and fraud or no fraud in the transaction, and these are questions of fact for the jury.

Husband and wife. Deed. Trusts. Before Judge JAMES Johnson. Muscogee Superior Court. November Term, 1874.

Reported in the opinion.

R. J. Moses, for plaintiff in error.

PEABODY & BRANNON, for defendant,

ness.

JACKSON, Judge.

E. H. Worrill obtained judgment against D. L. Booker and Milo. Booker, on the 31st of May, 1872. Execution was issued thereon and levied upon a certain lot of land in Columbus as the property of D. L. Booker, which was claimed by Elizabeth Booker, his wife. On the trial of the claim, plaintiff showed his fi. fa. and possession in defendant. Mrs. Booker showed a deed from her husband for value, and proved by him that he was indebted to her $6,000 00 for rents of lands which he had given her several years before, and that this deed was made to her in consideration of this indebted

The deed was dated some two weeks before the judgment. It also appeared from the testimony of defendant in fi. fa. that he had executed a mortgage on this land, and tried to raise money to pay plaintiff and failed; that he offered the mortgage twice to plaintiff, who declined it; that never having delivered it or realized anything on it, he canceled it and sold his wife the entire lot free from any incumbrance. The jury found the land subject, under the charge of the court, and two errors are complained of in the charge.

1. That the court erred in charging that if the wife owning a separate estate allows her husband to use the rents and profits, such use does not create a debt from the husband to the wife. We think that the court erred in this charge. The

Booker vs. Worrill.

statute of 1866 has made a great change in the law of this state in regard to the marriage relation so far as respects property. The wife, as to her separate estate, is a feme sole to all intents and purposes so far as that estate is concerned ; and her husband may become indebted to her for the incomes arising therefrom, if he uses and spends such income as his own and acknowledges the indebtedness to his wife, and the transaction is bona fide. This principle was ruled by this court during the present term in Humphrey vs. Copeland; and that the wife might owe the husband for services as clerk and she be garnished therefor, was ruled. It is, therefore, no longer an open question bere.

2. The court charged that a deed made by the husband to the wife directly, without the intervention of a trustee, was void at common law, and that our statutes had not changed the common law except in provisions for carrying out marriage settlements, and that the deed from D. L. Booker to his wife, Elizabeth, was void for this reason. We think our statutes have altered the common law, and that a deed may be made directly from husband to wife. Of course, such a deed will be closely scanned, as has been ruled by this court, and if fraudulent, will be set aside as against the rights of creditors, but if made bona fide and to pay a subsisting debt from husband to wife, the deed will be held good; and whether fraudulent or not, is a question for the jury: Code, section 1783.

3. Under these charges, the jury had no option. They were constrained to find the property subject, and the question of fraud or no fraud was not submitted to them. We think that the true issue, and reverse the judgment and order a new trial to determine that issue.

Judgment reversed.

Hambrick vs. Crawford.

Thomas HAMBRICK, plaintiff in error, vs. THOMAS S. CRAW

FORD, defendant in error.

1. That a defendant was not served with process, had no notice of the suit,

did not appear, nor authorize counsel to appear for him; that he was but a surety on the debt, and that the creditor, after judgment, granted the principal indulgence for a consideration and thereby discharged the surety; that the creditor failed to notify the administrator of a co-security, according to law, so that the estate was distributed without knowledge by the administrator that this debt was a charge upon the same, whereby the surety was injured in his right to contribution; and that the judgment itself was finally set aside, are defenses available to the surety, after levy upon his property, by affidavit of illegality, and if they are all known to him at the time of filing such an affidavit, those of them which, without a good legal excuse, he omits to set up therein are gone, and cannot, after the illegality is overruled, be urged in resistance to the execution, either by a sec

ond affidavit of illegality or by bill for injunction in equity. 2. With a good legal excuse for leaving the omitted defenses out of his first

affidavit, the surety may present them in a second (setting forth therein his excuse.) He cannot be denied a remedy expressly given by statute, by a rule of court to the contrary, nor can he be obliged to resort to a court of

equity to have his excuse adjudicated. 5. That counsel advised that it was useless or improper to embrace the omit

ted grounds of illegality, and advised also that the included ground was sufficient in law, is not a good excuse for leaving out the omitted grounds,

though the counsel was mistaken in his opinion. 4. Judgment in favor of an administrator, rendered on a contract with him,

may be collected by him after his dismission; especially if objection be

urged by no one but the judgment debtor himself. 5. On the hearing of a motion for injunction at chambers, it is not the right

of defendant to have a demurrer to the bill for want of equity heard before presenting other defenses upon which he means to rely. The judge may possess himself of the whole case from both parties, and then mature his decision ; in rendering which, he should first dispose of the demurrer. The defendant being called on to show cause against the application for injunction, is entitled to show as much cause as he can, but not to cut up the proceeding into several trials and judgments.

Injunction. Illegality. Attorney. Practice in the Superior Court. Before Jude Hall. Henry County. At Cham· bers. June 5th, 1875.

Crawford filed his bill against Hambrick making in substance, the following case:

Hambrick vs. Crawford.

On January 12th, 1856, he became security on a note given to defendant, as administrator of Sarah James by James F. Johnson, for $1,675 00, in consideration of the purchase of certain slaves. James F. Johnson was then solvent. The name of J. H. Johnson, the brother of the principal, was also signed to said note as security in advance of complainant's. He was then perfectly solvent. On April 9th, 1859, a payment of $73 48 was made thereon. Hambrick, as administrator, brought suit on said note to the fall term of the superior court of Clayton county. Complainant was ignorant of the fact that the defendant was not then the administrator of Sarah James, he having been discharged from such trust on December 7th, 1857. At the May term, 1860, of Clayton court, James F. Johnson, the principal, who was also an attorney at law, confessed judgment for the defendants to said suit, although he had no authority so to do from complainant. Complainant had no knowledge that any such suit had been instituted against him, never having been served therein; but he bas been informed since the rendition of said judgment, that said Johnson acknowledged service for the defendants. This was also without authority from complainant. An appeal was taken from said judgment, and the case continued from term to term until May, 1864, when said Johnson again entered a confession. This was also without the anthority of the complainant. In the summer of 1864 defendant came to the house of complainant and requested him to point ont property of the principal out of which the amount of said judgment could be collected by levy and sale. This complainant was about to do, and actually accompanied him and the sheriff to Jonesboro for this purpose, but there Hambrick, in consideration of the payment to him of $100 00 by Jolinson, agreed to indulge him. This was without the knowledge or consent of complainant. This indulgence was continued until after the close of the late war when nearly all the property of the principal had been lost or destroyed. In the year 1866, complainant's co-obligor departed this life and L. G. Johnson administered on his estate. Notice to creditors

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