Zimmer vs. Dansby.

the trial of this claim, plaintiff in fi. fa. proved possession in Sanders from 1860 up to judgment, and since, until within two or three years of the trial, and introduced a deed from Johnson to him, dated 11th of July, 1860. Claimant showed a deed to him from Sanders and wife dated 19th day of November, 1870, made by the approval of the ordinary, and proceedings before the ordinary showing that the land had been set apart as a homestead to Sanders on his application the year before; also a deed from Sanders to his wife, dated the 4th of September, 1866, and recorded that day; and proved by Sanders and wife that some money which the wife inherited in Alabama paid for the land; and further showed that this money was her separate estate by the law of Alabama. On this state of facts the court charged that if the jury believed that the land in question was paid for by the money of the wife, acquired as her separate estate in Alabama, the land was not subject, and that the deed so made by husband and wife, of the homestead, conveyed the wife's title to claimant; and declined to charge that if plaintiff credited defendant in fi. fa., bona fide, believing this property to be defendant's, without any notice of the wife's equity or trust, then the land is subject. The jury found the land not subject; the plaintiff moved for a new trial on the above charge and refusal to charge; the court refused to grant it, and this is the error assigned.

This debt was created prior to the constitution of 1868. Therefore no right against the judgment vested in the husband and wife by the homestead. If it had vested, the sale was illegal under the ruling of this court in Roberts and wife vs. Trammell, page 383, and claimant acquired no title. The homestead is therefore out of the question, and makes the case no better or worse for either side. The wife, however, signed the deed; the court below held that she conveyed thereby whatever title she had, and the claimant stands in her shoes and is subrogated to her rights. Suppose that this is a correct view of the law in respect to the rights of the claimant against her, and that she would be estopped in a contest with him,

Zimmer vs. Dansby.

and that he acquired all her title, then the question narrows to this point, what is her title against this judgment? The judgment was rendered in May, 1866; her husband's deed to her and its record was in September, 1866; and that judgment operated as a lien on his property from its date. The legal title to this property was in him, the husband, at the date of the judgment; the deed was to him alone, and the possession was in him; there was no record of the wife's title or of any equity in her when he got the credit or when the judgment was rendered, therefore there was no construetive notice to this judgment creditor, and the record discloses no actual notice to him of this equity of the wife. It is therefore a secret equity arising from a secret trust, so far as this creditor is concerned, and the naked question made by the request to charge and the refusal to do so, is, can such a secret trust, such a concealed equity, prevail to set aside a judgment lien obtained without any notice of its existence, actual or constructive? Which is the better equity, the creditor's judgment lien, he having credited on the conviction that this was the debtor's property, and the debtor having used the proceeds of the credit, doubtless for the benefit of his wife and himself? Which is the better equity, the creditor's judgment lien founded on such a debt, or the wife's secret equity covered up in this secret trust? We think, that in principle, there can be but one answer. The honest creditor, who gave the credit on

the strength of this property, should be preferred.

The analogies springing from our statute laws in relation to husband and wife at the time of the purchase of this land in 1860, strengthen this view of the law. At that time, the marital rights of the husband attached to the wife's property as a general rule, and all marriage settlements had to be recorded, or such settlements were void against bona fide purchasers or creditors. This money was brought into Georgia by the husband, no notice given that it was his wife's, the deed was taken to the husband, and he appeared as absolute owner until after the judgment, and then for the first time the wife's equity is recorded in the shape of a deed from him to

Zimmer vs. Dansby.

We

her. It is true that there is no law requiring a record of such a transaction, as in the case of marriage settlements, but the reason and spirit of the two cases is the same. As the law stood then, the husband was the master, the owner of all the ostensible property, and if the wife had any title to any part of it, derived from a marriage settlement, it had to be made known to warn creditors not to trust the husband on his apparent ownership. Why, if she had title to any part of it, otherwise derived, should not notice also be given, either by record, constructively or actually, by informing the creditor? It is right that it should have been done in both cases. think the principle ruled in this case now was practically decided in Humphrey vs. Copeland, 54 Georgia Reports, 543. There we held that "a judgment creditor who is protected against a mere equity in his debtor's property for want of notice before his judgment lien attaches, may, when the property is sold to satisfy the judgment, purchase and hold it disincumbered of such equity, though he, in the meantime, receive notice." That principle controls this case. Nor do we think that the cases of Burke et al. vs. Anderson, 40 Georgia Reports, 535, and Gray vs. Perry et al., 51 Ibid., 180, necessarily conflict with this ruling in Humphrey vs. Copeland, and now repeated in the present case. In Burke vs. Anderson the reasoning, we admit, is the other way, and would, perhaps, lead to a different conclusion from that now reached by us here; but the facts are different, and the judgment was simply that equity would grant relief to correct a mistake against bona fide creditors, though it would not against a bona fide purchaser without notice, and this seems grounded mainly on the statute: Code, section 3119. Then the only exception is the case of the bona fide purchaser, and inclusio unius exclusio alterius would apply; whereas, in marriage settlements, a closer analogy to this case, creditors are also expressly embraced: Code, section 1778. In the case in 51 Georgia Reports, Gray vs. Perry, the debt was in existence at the time the property went into possession of the hus

Methvin vs. Shorter et al.

band, and the creditor could not have credited on the faith of that property.

We forbear to say anything upon the question how far the law of Alabama, giving the wife a separate property in money, would be enforced in Georgia when that money was invested by the husband in lands in Georgia, as no point is made upon it.

We see no error in the ruling on the admissibility of the evidence of Mr. and Mrs. Sanders. There does not seem to have been any record or better evidence of the money having been the wife's in Alabama.

We reverse the judgment because we think the court erred in holding that this property was not subject to this judgment, if the creditor credited on the faith of its being the debtor's, and had no notice of the wife's equity. Judgment reversed.

J. A. P. METHVIN, plaintiff in error, vs. MARY J. SHORTER et al., defendants in error.

(JACKSON, Judge, having been of counsel, did not preside in this case.)

On the facts of the case there was no abuse of discretion in granting a new trial, whether the judge erred in any of his rulings on the former trial or If he did err, as he has granted a new trial, it is fair to presume that he will discover and correct his own errors.

not.

New trial. Before Judge WRIGHT. Quitman Superior Court. November Term, 187.5.

Report unnecessary.

J. H. GUERRY; GUERRY & SON, for plaintiff in error.

A. HOOD; S. W. GOODE, for defendants.

BLECKLEY, Judge.

After verdict finding the property levied upon subject, the claimants moved for a new trial on fifteen grounds, among

Felton vs. The State of Georgia.

them that the verdict was contrary to evidence. The court granted a new trial, and that judgment is the one sought to be reversed.

When the grant of a new trial is, as in this case, general, not put by the presiding judge upon any particular ground or grounds of the motion, it should be assumed that whatever errors the judge committed on the trial, he has discovered for himself and means to correct for himself. If, in the motion, there be a single ground upon which the order for a new trial is clearly warranted, an affirmance by this court must necessarily follow; and when that result is arrived at, it seems mere amateur work to search for errors, which when found, will be of no avail against the judgment under review.

On looking into the evidence, and treating the verdict as an entirety, the whole of the property under levy having been found subject, we are unable to pronounce that the judge abused his discretion in granting a new trial. With such evidence as we find in the record, the first grant of a new trial should undoubtedly be acquiesced in. The discretion of the judge is wide, and we are determined not to contract it.

If, in charging the jury, or otherwise, the judge committed any errors, he will have an opportunity of correcting them on the second trial. As he has ordered a new trial the whole case is still within his control, and he may give to it such final shape as will leave no cause of complaint to either party. Judgment affirmed.

NEAL FELTON, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error.

1. If there be sufficient evidence to sustain the verdict, this court will not control the discretion of the court below in refusing to grant a new trial on the ground that the verdict is against the weight of the evidence.

2. In a case where the testimony clearly shows that the defendant is guilty of more than a bare assault, it is not such error to refuse to charge that the jury may find him guilty only of the assault, as to require the grant of a new trial.