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Brown vs. Kimbrough et al.

WARNER, Chief Justice.

This was a bill filed by the complainant against the defendant, praying for a decree that certain described lands therein specified, might be turned over to her, and that the defendant account to her for the rents and profits thereof. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the defendant. The case is brought here on a bill of exceptions to the rulings of the court below. The complainant claims title to the land in controversy under a deed made by William M. Brown, administrator of Shelton, to Jack Brown, trustee for complainant, Jack Brown being her husband. This deed is dated 2d November, 1858. It appears from the evidence in the record, that the complainant and her husband, Jack Brown, conveyed the land by deed, on the 7th of May, 1861, to Kimbrough, the defendant, for the consideration of $18,000 00. The court charged the jury, amongst other things, “If Jack Brown and his wife made and executed the deed in evidence purporting to be made by them to Kimbrough, such deed conveyed to Kimbrough all the interest which they or either of them had in the lands, and if such is the case, Kimbrough is not liable to account to the complainant.” The complainant's counsel requested the court in writing to charge the jury that “A married woman cannot, by the ordinary deed of conveyance, dispose of her separate property, if the sale be real estate; and if Mrs. Brown, being a married woman, madle the deed set out in defendant's answer, then Kimbrough got no title to the same, and no right by which he could hold the land in opposition to Mrs. Brown." This request to charge the court refused. Whereupon the complainant excepted to the charge as given to the jury, and to the refusal to charge as requested.

But two questions were insisted on in the argument here. First, as to the right of a married woman to convey her separate estate in land by the ordinary deed of conveyance. Second, if she can do so, then the deed must be executed as

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Brown vs. Kimbrough et al.

.

provided by the second section of the act of 1760: Cobb's Digest, 161.

1. In our judgment, a married woman, in this state, who has a separate estate in lanıl, may dispose of the same by the ordinary deed of conveyance. Such a disposition of her real estate is a necessary incident to her ownership of that species of property, as well as of any other property, the more especially as real and personal property, in this state, is placed on the same footing as to distribution. When the decisions referred to on the argument were made by this court, in relation to the power of a feme covert to dispose of her separate estate in personal property, there was one species of personal property at that time which was considered much more important and valuable to the owners thereof than real estate, and yet it was held that she could dispose of her separate estate in that particular species of personal property. In this state, we are unable to perceive any sound distinction in principle between her power of disposition of her separate estate in personal property and her separate estate in real property.

2. In regard to the second question insisted on by the plaintiff in error, the act of 1760 only applies to such conveyances of real estate by the husband of the feme covert as she has or may have an interest in, and not to conveyances of her separate property, of which she is the sole owner. If she joins her husband in a conveyance of his property, in which she has an interest as his wife by reason of that relation, then, in order to make her relinquishment of that right valid, it must be executed in accordance with the requirements of that act; and such was the ruling of this court in Seabrook vs. Brady, 47 Georgia Reports, 651. In that case, Mrs. Brady signed a relinquishment to land conveyed by the deed of her husband, as his property, to Dawson. The act of 1760 has no application to a conveyance made by a feme covert of her separate property as the absolute owner thereof, and was not intended to have any. We find no error in the rulings of the court as set forth in the bill of exceptions.

Let the judgment of the court below be affirmed.

The Eagle, etc., Company vs. The Bank of Brunswick.

55
69 627
70 713

THE EAGLE AND PHENIX MANUFACTURING COMPANY,

plaintiff in error, vs. THE BANK OF BRUNSWICK, defendant in error.

1. A claimant who relies upon possession to defeat the lien of a judgment,

must prove actual possession. It is not sufficient to show that he had such possession as a “deed gave," without explaining, by the deed itself or otherwise, what was the character and extent of the possession which the deed did give, or what was done, under the deed, in the way of holding or using

the property. 2. If the charge of the court, purged of all error, would still leave the losing

party without any right whatever to a verdict, on the facts in evidence, it is immaterial what errors the charge contains. To him they are harmless.

Claim. Lien. Judgments. Possession. Charge of Court. Practice in the Supreme court. Before Judge JAMES JOHNSON. Muscogee Superior Court. November Term, 1874.

An execution in favor of the Bank of Brunswick against the Water Lot Company of the city of Columbus, was levieil upon certain water lots in the city of Columbus. A claim to a portion of the property covered by the levy was interposed by the Eagle and Phenix Manufacturing Company. The claim was based on a purchase by claimant and four years possession prior to the levy. Upon this branch of the case the evidence was that claimant had purchased the property in controversy, in the early part of the year 1866, and had been "in such possession as the deed gave," ever since. No deed to claimant is set forth in the record; nor was the possession given by it explained. From whom claimant purchased, and the consideration paid does not appear.

The jury found the property subject. Exception was taken to the charge of the court, but in view of the decision, it is immaterial here.

H. L. BENNING; PEABODY & BRANNON, for plaintiff in

error.

R. J. MOSES; BLANDFORD & GARRARD, for defendant.

Pollard & Company vs. Gibbs et al.

BLECKLEY, Judge.

Title to the property levied upon, was shown, on trial, to have vested in the defendant in fi. fa., in the year 1845. A part of the chain, was a legislative charter granted in that year. See 11th Georgia Reports, 556. The judgment was rendered in 1855. No conveyance of title out of defendant appeared. There is parol evidence that the claimant bought in the early part of 1866, but from whom is not stated. There is, in the record, a deed, introduced by the plaintiff in fi. fa., dated in 1863, from one Josephus Echols to the Eagle Manufacturing Company; but the claimant is the Eagle and Phenix Manufacturing Company, and it did not purchase till 1866, whereas, this deed bears date in 1863. From these differences in dates and names, we conclude that the two companies are not the same, but if it were otherwise it would not vary the result. What is meant in the testimony by "such possession as the deed gave, we do not know. We do not even know what deed is referred to. No actual possession of the lots now under levy was proved, though such possession appeared of other lots, one or more, included in the same purchase, or purchased at the same time. We find no deed that applies to this purchase or to the claimant's case; no evidence of the payment of any purchase price, and no evidence of actual possession for any period of time. In this state of the facts it makes no difference what the court charged; a verdict for the claimant was a legal impossibility, and errors in the charge were harviless.

Judgment affirmed.

55 45 90 113

POLLARD & COMPANY, plaintiffs in error, vs. THOMAS

GIBBS, sheriff, et al., defendants in error.
Where a crop lien for fertilizers is executed by an agent who acts without

authority from the principal, and in his absence, and the lien is under seal,
proof of the ratification by the principal must be in writing and under seal,

55 45 102 751

Pollard & Company vs. Gibbs et al.

Principal and agent. Factor's lien. Before Judge TOMPKINS. Morgan Superior Court. March Adjourned Term, 1875.

Reported in the opinion.

REESE & REESE, for plaintiffs in error.

A. G. & F. C. Foster, for defendants.

JACKSON, Judge.

be so.

This was a rule against the sheriff for distribution of a fund arising from the sale of some bales of cotton. Pollard & Company held the oldest and best lien against Reid, but younger judgments claimed the fund on the ground that the lien of Pollard & Company for advances had never been made by Reid. The proof was, that one Hoge, the agent of Pollard & Company, in the sale of fertilizers, sold them to Reid, and signed Reid's name, in his absence, to the lien. He stated that Reid afterwards ratified it by parol; Reid denied it, and there was some other proof, the evidence being conflicting on the point of ratification. The instrument creating the lien was under seal, but the statute does not require it to

The court charged the jury that the ratification of Reid could not be made in parol; the jury found for the junior judgments; Pollard & Company excepted to the charge, and the sole question is, could Reid ratify the act of Hoge in putting his name to this paper, thus signed and sealed, by parol ? This question first came before this court in Beall vs. Crafton, 5 Georgia, 301, where the charge of the court below, that the power to make a deed for another must be in writing and under seal, was approved ; though in that case there was no authority or ratification of the act in any way, by writing or word of mouth. In the case of Ingram vs. Little, in 14 Georgia, 173, it again came up, and then it was expressly ruled that a blank in a deed could not be filled, in the absence of a grantor, without authority in writing, and under

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