Page images
PDF
EPUB

purchase-money and has gone into possession. Greenough v. Small,

859.

See APPEAL AND ERROR, 1; HOMESTEAD, 8; JUDGMENTS, 19; PERSONAL

PROPERTY.

EXEMPTIONS.

See ATTACHMENT AND GARNISHment; ExecutiON; HOMESTEAD.

FALSE PRETENSES.

See CRIMINAL Law, 6.

FENCES.

See NUISANCES, 1.

FIXTURES.

FACTORY AND ITS EQUIPMENTS MAY BE PERSONAL PROPERTY WHEN. A factory with its equipments, though it is affixed to the soil, may have impressed upon it the character of personal property by the acts and conduct of parties dealing with it as mortgagees and owners, and this character, when once impressed upon it, will be retained, unless by decree it is transformed into real property. Horn v. Indianapolis Nat. Bank, 231.

FORECLOSURE.

See MORTGAGES.

FORFEITURES.

See EQUITY; Insurance, 7, 8; Landlord and Tenant, 1–3.

FORGED CHECKS.

See BANKS ANd Banking, 1-4.

FORMER ACTION.

See ABATEMEnt, 1.

FRAUD.

JUDGMENTS, PROCUREMENT OF, BY FRAUD, IS QUESTION OF FACT. — A claim that a judgment rendered in another state was procured by fraud and collusion presents a question of fact to be determined by the jury, under proper instruction. Knickerbocker v. Wilcox, 595.

See AGENCY, 2; Assignment for Benefit of Creditors, 1–3; Corporations, 23; CRIMINAL LAW; SALES, 16.

FRAUDULENT CONVEYANCES.

EVIDENCE OF INTENT. - Where a sale of personal property is attacked as having been made with intent to hinder, delay, and defraud creditors, the seller may testify as to whether or not such was his intent in making the sale. Gardom v. Woodward, 310.

See ASSIGNMENT FOR BENEFIT OF CREDITORS, 2, 3; CHATTEL MORTGAGES, 1-4; HUSBAND AND WIFE, 2-12; SALES.

GARNISHMENT.

See ATTACHMENT and GARNISHMENT.

GIFTS.

1. GIFT CAUSA MORTIS - EVIDENCE. Where the fact of a gift causa mortis is testified to by the donee or a member of his family, a writing executed by the donor a few days before making the alleged gift is admissible as corroborative evidence, if it shows an intention to give, and thus corroborates the evidence of a gift subsequently made. Ridden v. Thrall, 758.

2. GIFT CAUSA MORTIS OF MONEY DEPOSITED IN BANK may be consummated by a delivery to the donee of the bank-book representing the deposits, though the corporation with which the deposits were made had adopted a by-law declaring that drafts may be made personally, or by an order in writing by the depositor, or by his power of attorney, duly authenti. cated, and that any one presenting such order or power of attorney must be known, or made known, as one authorized to receive the money. Id. 3. GIFT CAUSA MORTIS MAY BE MADE BY ONE IN APPREHENSION OF DEATH FROM A SURGICAL OPERATION to which he intends voluntarily to expose himself, if such operation is made necessary by a present disease. Id. 4. GIFT CAUSA MORTIS MUST BE IN APPREHENSION OF SOME PRESENT DISEASE or some other impending peril, and becomes void upon recovery from the disease or escape from the peril. Id.

5. GIFT CAUSA MORTIS NEED NOT BE MADE IN EXTREMIS, when there is no time or opportunity to make a will. Id.

6. GIFT CAUSA Mortis when Death DID NOT RESULT FROM THE DISEASE OR PERIL APPREHENDED. — If a gift causa mortis is made in view of the peril of a surgical operation to which the donor is about to submit, and he, after submitting to the operation, and before his recovery therefrom, dies from another disease or cause, the gift is valid. It is true that such a gift becomes inoperative if the donor recovers from the disease or escapes the peril in contemplation when it was made; but if he does not recover, the gift is good, though his death results from a cause not apprehended by him. Id.

See EVIDENCE, 3-5.

GROWING CROPS.

See MARRIAGE AND DIVORCE, 7.

GUARANTY.

See NEGOTIABLE INSTRUMENTS, 13; SURETYSHIP.

HIGHWAYS.

See ANIMALS; RAILROAD COMPANIES, 4-8.

HOMESTEAD.

1. SUFFICIENCY OF SURVEYOR'S AFFIDAVIT OF PLAT OF. -The surveyor's affidavit that the plat "is a correct plat" means, in substance, that the land is correctly platted and laid off, and is a sufficient affidavit under section 2008 of the Georgia code. Timothy v. Chambers, 163. 2. REGISTRATION OF PLAt of. - The law does not require the plat to be recorded in the county in which the land lies, but only in the county in

which the jurisdiction to secure the homestead is exercised: Georgia code, section 2009. Id.

8. Presumption in Favor or Regularity of PROCEEDINGS TO OBTAIN. — Liberal presumptions are indulged in favor of the regularity of homestead proceedings. A proper order to the surveyor will be presumed, where the ordinary has approved the plat returned to him; and approval of the "homestead" means, substantially, approval of the plat and the schedule conformably to section 2009 of the Georgia code. Id.

4. SOLD WITHOUT Leave MAY BE RECOVERED THOUGH PROCEEDS ENJOYED - MESNE PROFITS SET OFF. - Where husband and wife sold and con. veyed homestead land secured under the constitution of 1868, with no leave so to do, that the beneficiaries of the homestead used and enjoyed the proceeds of the sale will not bar a recovery of the land, but money thus used and enjoyed may be set off against mesne profits for which the purchaser is liable. Id.

5. SOLD WITHOUT LEAVE MAY BE RECOVERED WIFE'S WARRANTY DEED NOT ESTOPPEL. The wife's deed, with or without warranty, if it has no effect as a conveyance of title, will not estop her as to her interest in the homestead premises in an action to recover the land on the homestead right. Though she may be bound to respond to her warranty, her own property, not the homestead itself, must be looked to for satisfaction. Id.

6. On the Death of a HusbaND, community property of himself and his wife, held by them as their homestead, vests in her, and is protected as her homestead to the same extent as before his death. Sanders v. Russell, 26.

7. JUDGMENT AND EXECUTION LIEN UPON HOMESTEAD. Though a homestead is in value largely in excess of the amount allowed by law, the levy of an execution upon it does not create any lien. Its operation is confined to serving as a foundation for proceedings under the statute for the ascertainment of the value of the property covered by the declaration of homestead, and the procurement of an order of court for the partition or sale thereof, and the application of the excess to the satisfaction of the judgment. Id.

8. ESTATES OF DECEDENTS, PRESENTATION OF CLAIMS AGAINST. -If one has a judgment against the estate of a decedent, under which a levy has been made on a homestead in his lifetime, the plaintiff must present his claim upon such judgment to the administrator and procure its allowance, and is not entitled to proceed to have the homestead appraised and sold or partitioned, and the excess above the amount of the homestead exemption applied to the payment of the judgment. Id.

HOMICIDE.

See CRIMINAL LAW, 16-26.

HUSBAND AND WIFE.

[ocr errors]

1. HUSBAND AND WIFE MAY MAINTAIN JOINT ACTION FOR BREACH OF CONTRACT OF BAILMENT WHEN. Where a husband and wife enter into a contract of bailment with a person, and compensate him for such bailment, they are entitled to maintain a joint action against him for a breach of such contract. And while in such an action the matters charged in the complaint partake largely of the nature of a tort, yet if

they are so intimately connected with the contract of bailment, also alleged in the complaint, as to be incapable of separation from it, this will constitute such a unity of interest in such husband and wife as will give them the joint right to maintain the action. Renihan v. Wright, 249. 2. CONVEYANCES BETWEEN. Husband and wife may,'during coverture, make contracts for the conveyances of property between themselves which are valid in equity; and although they will be examined with great care, they will always be upheld when found to contain the essential requisites. Haussman v. Burnham, 74.

[ocr errors]

3. ID. CONSIDERATION. A promise by a married woman to reconvey certain property to her husband upon his request, in consideration of his conveyance of the same to her through a third person, and reserving to the husband a life use therein, is based upon a valuable and adequate consideration, and is enforceable in equity. Id.

4. ID. A contract of a married woman with her husband, for the benefit of herself or her estate, is binding in equity, and the estate affected thereby need not be held by her to her sole and separate use. Id.

5. ID. STATUTE OF FRAUDS. If a married woman contracts to reconvey certain property to her husband upon his request, in consideration of his conveyance of the same to her through a trustee, the statute of frauds does not apply. Such contract need not be in writing, as part of it has been fully performed by one of the contracting parties, nor is it objec tionable because not to be performed within a year, when no time for performance is stipulated. Id.

[ocr errors]

6. ID. MISTAKE. Where a married woman agrees to reconvey property to her husband upon his request, in consideration of a conveyance of the same to her, but the husband fails to join the wife in such reconvey. ance, owing to the erroneous advice of his counsel, equity will relieve against the legal mistake, and order a reconveyance, unless there are substantial reasons to the contrary. Id.

7. ID. WAIVER.

- Where a wife agrees to reconvey property to her husband upon his request, in consideration of his conveyance of the same to her, her subsequent consent and attempt to reconvey constitute a waiver of a former request to reconvey, and such waiver attaches to those who claim under or through her. Id.

8. ID. DUTY OF HEIRS TO RECONVEY.

Where a wife promises to reconvey property to her husband upon his request, in consideration of his conveyance of the same to her, the liability to reconvey at any time upon request constitutes an equity which attaches to it while in her hands, and her heirs take and hold it subject to the same equity, which can be enforced against them to the same extent that it might have been enforced against her during her lifetime. Id.

9. ID. PAROL PROOF OF CONSIDERATION.

[ocr errors]

- Where the real consideration

for a conveyance from husband to wife is different from that expressed in the deed, it may be shown by parol, and the variance does not impair the validity or change the effect of the conveyance. Id.

10. ID. PROMISE TO RECONVEY.

Where a wife promises to reconvey certain property to her husband upon his request, in consideration of a conveyance of the same to her, reserving the use of a life estate in the property to him, the promise to reconvey is not inconsistent with the interest in the premises reserved in the deed to her. Id. 11. CONVEYANCES BETWEEN, WHETHER VOLUNTARY.

- Where a wife agrees

to reconvey property to her husband upon his request, in consideration

of his conveyance of the same to her, such reconveyance is not voluntary so as to prevent equity from enforcing it, in the absence of proof of her indebtedness, or that creditors were defrauded or prejudiced. Id. 12. CONVEYANCES BETWEEN- ENFORCEMENT OF PROMISE TO RECONVEY.

Where a married woman promises to reconvey property to her hus. band upon his request, in consideration of his conveyance of the same to her, equity will enforce such promise, although she has made an ineffectual attempt to reconvey. Id.

13. BOND TO HUSBAND FOR WIFE'S SEPARATE SUPPORT INVALIDATED BY HER RETURN TO HIM. Where a person gives to a husband, whose wife has left him and commenced an action against him for a limited divorce and for support, a bond conditioned that he will support the wife and save the husband from all further liability therefor, he is not liable on such bond for money paid by the husband for necessaries supplied to the wife after she returns to her husband and permanently resumes her membership of his family as his wife, even though the reconciliation be not wholly complete nor the conjugal relation entirely restored. Such return and resumption put an end to the contract represented by the condition of the bond. Zimmer v. Settle, 638.

14. SEPARATE PROPERTY. If a married woman purchases property which is, at the time, intended to be her separate estate, and her husband loans her money to be used in making a partial payment, he does not, nor does the community, acquire an interest in the property proportionate to the moneys so loaned by him, nor to any other extent. He is simply a creditor of his wife to the amount of the loan. Flournoy v. Flournoy, 39.

15. Id. — If a wife purchases property, paying therefor partly out of her separate estate and partly with moneys borrowed on the faith of her existing property, and secured by a mortgage thereon, in which and the note which it is given to secure the husband also joins, the whole purchase is her separate estate. Id.

16. ID. Where property is purchased as the separate estate of a married woman, and intended, at the time of purchase, both by her and her hus band, to be hers, the fact that he subsequently, without her knowledge or consent, paid an unpaid balance of the purchase price cannot prevent the entire property from being her separate estate. Id.

17. ID.

-

When the question of the effect of a conveyance to a married woman is involved, the intention of the parties is of paramount importance; and if, as between the husband and wife, it was intended to vest the property in her as her separate estate, the courts will respect that intention and declare the property to be hers, though but for such in tention the title would vest in the community. Id.

See HOMESTEAD.

IGNORANCE.

See ABATEMENT, 2.

IMPROVEMENTS.

See MORTGAGES, 7.

INCEST.

See CRIMINAL LAW, 7-11.

« PreviousContinue »