Corley v. Corley

22 Ga. 178

• Court: Supreme Court of Georgia
• Decided: March 15, 1857
• Docket: No. 38
• Status: Published

Opinion

By the Court.

Lumpkin J.

delivering the opinion

[1.] Had Austin W. Corley, the husband of Nancy Corley, the complainant in the bill, so reduced to possession his wife’s share of the negroes deeded to her'by her grand parents, John and Ann Arledge in 1816, as to defeat her equity to a settlement out of said property ? For we hold, that if, before any proceedings be instituted in relation to the slaves, they had been transferred to the husband by the person entitled to the custody of thé same- — as it lawfully may be — the transfer will be good; and it is afterwards too iate to apply to a Court of equity for its interposition for a settlement on the wife and children.

What are the facts ? The negroes were conveyed in trust to Mark Mathis, to be held by him for the maintenance and support of Esther Weeks, their daughter, and her children, for and during her natural life; and at her death, said slaves and their increase, to be equally divided between said Esther Weeks’ children, which she then had or might have at the time of -her death. Mathis the trustee, lived about four years atid died, and no one was appointed in his place. The slaves and their increase were taken possession of by Esther Weeks, and held and controlled by her until 1826, when her oldest daughter intermarried, and she permitted her husband to take off two of the negroes. In 1828, another daughter married, and she allowed her husband to carry off one of said negroes; and thus she permitted each one of her children as they severally came of age or married, to take one or two and sometimes three of said slaves.

Mrs. Corley, the complainant, who was one of said children, intermarried with Austin W. Corley in 1830; and in 1832, removed to the State of Georgia.

In 1834, when on a visit to South Carolina, iier mother suffered her husband to bring with him to Georgia three of said slaves, for which he gave a íeceipt to the said Esther, specifying that they were received as his and his wife’s share of John Arledge’s estate. Esther Weeks died in 1856. Whether each of the other children executed a similar instrument, or any at all, does not appear. Neither is it shown whether the portions thus allotted off were of equal or unequal value, or what became of the property left with Esther Weeks after the termination of her life estate.

The position occupied by the learned counsel for the creditors is, that notwithstanding the division thus made had no binding force until the whole of the children had severally ratified it; yet when the last child received his share, the implied consent of the whole was given thereto, and the distribution was complete. But this assumes that every child, received an equal portion, or at an3' rate, a share with which he was satisfied, and granted ari acquittance similar to that given by Corley, and that too in the face of the positive allegation in the bill, which is admitted by the demurrer to be true, that neither before nor since the death of Esther Weeks has there been any distribution of the negroes.

But we apprehend there is another stubborn difficulty in the way. To make this transaction such a reduction to possession of this property by the husband, as will cut off and defeat the wife’s equity, it must amount to a relinquishment by each of the remainder-men to all the rest of any other or further interest in and to the property, including necessarily the wife’s equity to a settlement, and this she has never given. It is true, she may voluntarily part with this right, but. the husband canqot convey it without her consent. By the terms of the deed, there was not to be a division of the property until the death of Esther Weeks. Adams was appointed trustee, by order of the Judge under the Act of 1853, in lieu of Mark Mathis deceased, before the death of Esther Weeks, and had in his posession as such trustee, at the time ©f her death, the nine negroes in controversy. By order of the Judge, acting as chancellor, the legal title to the negroeswas assigned to Adams the trustee, who held them in trust, for the use, behoof and benefit of Mrs. Corley, according to the terms and conditions of the original deed, as fully and completely as Mark Mathis, had he continued in life. Hill on Trustees 41, 45, 48, 211.

We repeat, therefore, that it was not competent for the husband, in 1834, to execute such an assignment, upon the receipt of a part of the property, as would defeat the wife’s equity; she not of her own accord joining therein with him. The receipt given by Corley must be construed to extend only to such an interest as the tenant for life had in the pro.perty. It was only a receipt for the use of a portion of the property during Esther Week’s life, and not for the corpus. To this Corley was entitled: and a Court of equity would not only have sanctioned, but coerced by its decree, just such an arrangement, without interfering at all with the wife’s equity.

[2.] Could Corley himself, or his creditors, or the purchasers of his interest in this property, which is the surplus, if any, after a suitable settlement is made for the wife of this insolvent and her eight children, effect a division of the negroes without resorting to a Court of equity ? We know of no mode at law of partitioning this property, and counsel have suggested none. That being the case, equity will interfere and restrain, by injunction, the sale of this property at the instance of the husband’s creditors, until a suitable provision is made, Kenney vs. Udal, 5 Johns. Ch. Rep. 464.

Judgment reversed,