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Nicol & Davidson vs. Crittenden.

from the testimony what was the fact, and see whether it, the transaction, was void for the reason stated,” and immediately following this charge, went on and gave the charge quoted in the 5th ground, failing to explain to the jury the legal effect which a colorable sale alone, or a sale not designed to pass the title, would have as to passing or not passing the title as against Kimball's creditors.

11th. Because the court charged the jury as quoted in the 6th ground of this motion, and immediately thereafter added: “Whether the facts in this case raise this presumption or not, is a question for you to decide.”

The evidence is unnecessary to an understanding of the principles decided.

The motion was overruled, and plaintiffs excepted.

In the bill of exceptions is noted an exception in behalf of the claimant to a refusal of the court to dismiss the motion for a new trial. The grounds of the motion to dismiss do

not appear.

COLLIER, MYNATT & COLLIER; E. N. BROYLES, for plaintiffs in error.

B. H. HILL & Son; CANDLER & Thomson, for defendant

BLECKLEY, Judge.

This claim involved the furniture in the H. I. Kimball House, a hotel in the city of Atlanta. The furniture was levied upon by attachment in favor of the plaintiffs, as the property of H. I. Kimball, who was confessedly once the owner, and under whom Crittenden claimed by purchase. At the time of the levy Crittenden had possession. The plaintiffs, as creditors of Kimball, attacked the sale to Crittenden on several grounds. They said, first, that it was not real but only colorable and pretended; secondly, that if real, it was fraudulent because made with intent to delay and defraud creditors; and, thirdly, that it was a conditional and not an absolute sale, and was incomplete at the time of the levy.

Nicol & Davidson vs. Crittenden.

The jury rendered a verdict for the claimant, and the plaintiffs moved for a new trial on many grounds, most of them relating to the charge of the court, and being complaints either of instructions given or of failure to instruct further.

We have considered and decided upon all the points made in the motion for new trial except those relating to the sufficiency of the evidence and the agreement of the verdict, or rather its disagreement, with law, equity, and the charge of the court as given. The disposition we make of the case renders it proper that we refrain from expressing any opinion on these matters.

Our rulings in the case are set ont fully in the head-notes which we have prepared to embody the legal propositions which we decide. These notes sustain the court below in everything except one. We hold that the court erred in charging the jury that the purchaser would be protected against the fraudulent intent of the seller unless that intent was known to him. The Code, in section 1952, expressly prescribes another condition, which is that he should be without grounds for reasonable suspicion. And this element of invalidity was much more involved in the facts of the case than was the element of actual knowledge. The jury ought to have passed upon it, and this they were precluded from doing by the charge as given. It is impossible that the case can be fully and legally tried without scrutinizing the grounds of suspicion which the claimant may have had, and which the plaintiffs contend he did have. The jury, besides dealing with the other issues in this case, should be directed to inquire whether the debtor intended to delay or defraud creditors, and if so, whether the claimant purchased on a valuable consideration, and without notice or grounds for reasonable suspicion.

The record does not enable us to discover any error in overruling the claimant's motion to dismiss the plaintiffs' motion for new trial. Nothing is disclosed as to the grounds or reasons presented to the court and passed upon by it in acting upon the motion to dismiss. For aught that appears, the court ruled properly on the matters before it. What these matters were we

Bazemore vs. Davis.

cannot tell, as we have only the bare fact that the motion was overruled, without any copy of the motion or any recital of its contents.

Judgment reversed.

AMANDA BAZEMORE, plaintiff in error, vs. MARTHA Davis,

defendant in error.

55 504 109 335

(This case was argued at the January term, 1875. The court, not being satisfied, ordered a reargument at the following July term, when it was decided.)

1. The judge may direct counsel to amend their pleadings, so as to charge

the value of improvements mentioned therein; and it is not error of which

the opposite party can complain. 2. Where discovery is waived, it is not improper, but altogether proper, for

the judge to caution the jury not to regard desendant's answer as evidence,

and this caution may be given whilst the answer is being read. 3. Concluding counsel cannot read or comment upon authorities which he

does not read or produce to the opposite counsel in the opening. Merely to name the books and pages from which he intends to read, is not sufficient; but the court can only deny him the privilege of using the authorities, and has no power to compel him to furnish the books to opposing counsel, the court agrees with concluding counsel on the law, and does not desire him to fortify his positions by authority, the judge may so state

when the argument opens or afterwards. 4. It is not error for the court, in the presence and hearing of the jury, to

call counsel's attention to a particular clause in one of the muniments of title in evidence, and ask them what they have to say why it should not be

construed to have a certain legal effect adverse to the right claimed. 5. One of the rules of practice requires that counsel interrupting another for

misstating the evidence, shall address himself to the court. When this rule is violated it is highly proper that the court should interpose peremptorily and put an end to the irregularity. And, on such an occasion, it is not inappropriate for the court to observe to the jury, that when counsel differ as to the testimony, it is their function to decide from the testimony

itself how the matter was. 6. A marriage settlement executed and recorded in 1842, was embraced in

the act of December 30th, 1847, and had to be again recorded, in terms of that act, in order for the record to operate as notice: 32 Georgia Reports, 165. The record of a settlement or trust deed is not constructive notice, except in relation to the property conveyed therein. It is not, of itself, notice as to property purchased by the trustee with the proceeds of that property.

Bazemore vs. Davis,

55 505 57 269 59 59 70 672 81 35

55 505 105 349)

as

7. A deed to a trustee, in trust for a woman and the heirs of her deceased

husband, (there being but a single child,) conveys an estate in common for the benefit of the woman and child; and a purchaser from the trustee is charged, by such a deed, with notice of that kind of an estate only, and not with notice of an estate for life in the woman, with remainder to the

child. 8. Although the mayor of Macon, in conveying certain advance fronts (form

erly street or common,) could only convey the same to the owners of lots abutting thereon, yet, where one of such owners was a trustee holding by the above deed, for the use of the woman and child, as tenants in common, the mayor's deed would not necessarily vest a like estate in the trustee; but might, by express declaration of trust to that effect, convey an estate, in the advance front, for the woman's use during her life, with remainder for the

use of the child, (a) A subsequent conveyance, in fee, of both parcels of land, made by the

trustee, and describing him as trustee of the woman only, without referring to the child or to the first deed, and without defining what estate he held in trust, but referring to the second deed as having been made to him “ trustee aforesaid,” by the mayor, on the day of its date, passes to the pur

chaser no title to any of the child's patent interest in either parcel of land. (6) This deed from the trustee to the purchaser under him, charges the pur

chaser with notice of the deed from the mayor to the trustee, and of all its terms, but notice of that deed is not notice that the woman had only an estate for life in the parcel of land covered by the other deed to the trustee,

and that the remainder belonged to the child. 9. Where property is held in trust to the use and support, benefit and behoof,

of a woman during her life, and to the maintenance and support of such children as she may bear, “and which shall form and remain to be her separate property and estate during her natural life, and then to such children as she may bear,” the surplus income realized in her lifetime, over and above support for all the beneficiaries, belongs to her; and if mixed by the trustee with the proceeds of some of the corpus of the trust estate, and invested in lands, he taking title to himself, in trust for the woman and her only child, she will be the equitable owner, in fee, such proportion of the

land as the amount of income so invested bears to the whole investment. 10. If tenant in common improve the property while in possession and claim

ing to be sole owner, and with no permission or request from the co-tenant, the latter is not chargeable with the value of such improvements, beyond

her share of the rents chargeable to the former. 11. If a trustee for two persons sell and convey the whole property, in fee,

purporting to act as trustee for one only, and a part of the price, or the proceeds thereof, pass from the trustee to that one of the beneficiaries not named in the transaction, such beneficiary must refund the same,

in equity, to the purchaser, or to those holding under him as subsequent purchasers, before being allowed to recover the whole of her interest in the trust estate 60 sold and conveyed; but a recovery may be had for such part as remains,

VOL. LV. 33

Bazemore vs. Davis.

on.

after deducting the amount received by the beneficiary, with interest there

In the application of this rule, it makes no difference that the beneficiary was not of full age when she received the money or its proceeds, provided the fund was secured by settlement upon her as a separate estate. She will, however, be chargeable only with such estate (for life or otherwise) as she actually took in the fund, and will not be responsible for any larger estate in it which her husband may have assumed and disposed of to other persons, unless she joined him in making such disposition after she

arrived at majority. 12. If the trust property sold and conveyed by the trustee, as specified in the

last preceding note, has since passed, by several parcels, into the hands of several separate purchasers, then, in accounting with any of such purchasers, the said beneficiary should bring back only so much of the proceeds with which she may be chargeable as will make the given purchaser's due pro rata proportion thereof, valuing each parcel, not in its present condition, but as it was when the trustee sold and conveyed the whole property. If the owners of all the parcels were before the court as parties, this basis of apportionment might be varied to meet any special circumstances giving

rise to peculiar equities. 13. A settlement by husband, shortly after marriage, in trust for the sole and

separate use and benefit of the wife during her natural life, and at her death, to such child as should be born of her by the husband, free from any debts the husband should ever contract, with a reservation to himself of the right of using, at his discretion, the rents, issues and profits, without accountability, during the coverture, or during his life, if the wife should die first, leaving offspring of the marriage, and with a further declaration that in case of his survivorship, all of the property, with its increase, should vest absolutely in him, operated not only during the coverture existing at the time of executing the settlement and raising the trust, but during a subsequent coverture established by a second marriage between the same par

ties after a divorce a vinculo matrimonii. 14. Consequently, the second marriage, though occurring in 1865, was not

attended with the attachment of fresh marital rights upon any of the property embraced in the settlement.

Practice in the Superior Court. Discovery. Argument of counsel. Marriage settlement. Registry. Notice. Trusts. Estates. Infant. Tenants in common. Improvements. Husband and wife. Divorce. Before Judge Hill. Bibb Superior Court. April Term, 1874.

On July 21st, 1842, William H. Disharoon executed a postnuptial settlement by which he conveyed to James S. Miller one hundred and fifty-two acres of land in Twiggs county,

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