Hidell v. Dwinell

16 S.E. 79, 89 Ga. 532

Opinion

Judgment reversed.

The plaintiff moved to strike all those portions of the pleas which set up as a defence the proceedings' and judgment or decree in the attachment suit of Dwinell against Hidell, the equitable plea or cross-bill of Hidell and the petition of Mrs. Hidell to be made a .party therein, and the proceedings and judgment in the suit of Dwinell against the sheriff, upon the ground that none of said proceedings or the judgments, nor all of them together, constituted any defence to the suit then on trial, or had any relevancy thereto. The motion was overruled.

Plaintiff then introduced testimony to the following effect: In January, 1885, she owned a separate estate derived from her grandfather, consisting of bonds, mortgages, real estate and money, situated and held in Home and Philadelphia. Her husband had the custody and management of it. She knew of the purchase by her husband from Dwinell in January, 1885, of the Rome Courier property. About the 8th of January, 1885, Mr. and Mrs. Hidell, Dwinell and others were at a dinner together. In the course of conversation, in the hearing of Dwinell Hidell spoke of his lack of means and said that his wife had separate property and means of her own. The substance of what he said was, that he had nothing, that the money he was investing in a house and lot adjoining was his wife’s property. Mrs. Hidell, acknowledging the fact also, said she had no interest apart from her husband. Hidell said that his marriage had been opposed by his wife’s stepfather on account of Hidell’s lack of means, and that a very strict marriage settlement had been drawm to prevent- his squandering her property, as her stepfather seemed to fear. No allusion was made in this conversation to. the purchase of the Rome Courier. Plaintiff' also introduced a receipt from Dwinell to her husband dated January 16, 1885, for $4,000, part^purchase money for Courier office, sold the day before to 'Hidell for $6,000, balance to be paid cash.

Plaintiff then offered her husband as a witness, .and proposed to prove by him, that on the. 14th day of January, 1885, he concluded a trade with Dwinell for the purchase from him of the Rome Courier newspaper property at $6,000, and on that day took possession of the property and began the publication of the paper; that two days thereafter he paid Dwinell on said purchase $4,000, shown in a receipt (in evidence) from Dwinell; that this payment was made in a note on Jas. B. Hill for $1,300, on which $300 interest was due, and a bond of the city of home for $500, and the balance, $2,197, in money; that about the same time he paid Dwinell $227.06 on the purchase of some stock of paper and mateiial which he bought with the newspaper establishment; that all these, to wit, the money, bond and note which he so paid Dwinell, were the property of his wife, the plaintiff, being a part of her • separate estate ; that he had stated to Dwinell while negotiating with him for said purchase that he (Ilidell) was especially desirous to have accurate and full information as to the condition of the property, etc., because if he made the purchase he should use his wife’s means to pay for it; and that some days before said negotiations began and without reference to it, he had incidentally informed. Dwinell that he (Iiidell) had no . means of his own, and that the means he was operating with belonged to his wife. This testimony was objected to, on the ground that the witness was interested in the result of the suit, and Dwinell, the other party to the transaction, was dead ; and because of the following facts, which were admitted by plaintiff' to be true, showing, as argued, that the witness had acted as an agent or attorney for his wife in the several matters referred to : that both the mortgages given by him to his wife, set out in defendant’s plea, were in his handwriting, the one for $4,500 having been given to secure the payment of the money now sued for ; that he wrote for her the affidavits foreclosing the mortgages, represented her at the sheriff’s sale of the mortgaged property, wrote the affidavit made by her to require Dwinell, the purchaser at that sale, to give bond for the forthcoming of the property to answer her mortgages, and signed as her agent the agreement between her and Dwinell, waiving such bond, etc., all of which writings and facts are set forth in the defendant’s plea or exhibits attached thereto. The court sustained the objection and rejected the testimony. Counsel for plaintiff then stated that he had no direct evidence that the money . and effects in question were the property of plaintiff, other than the proposed testimony of her husband. "Whereupon the court. rendered a judgment of nonsuit.

C. N. Featherston, for plaintiff. 0. Rowell, for defendants.