Kiser v. Kiser

105 S.E.2d 220, 214 Ga. 402, 1958 Ga. LEXIS 440

• Court: Supreme Court of Georgia
• Decided: September 5, 1958
• Docket: 20134
• Status: Published

Opinion

Duckworth, Chief Justice.

1. The subsequent cohabitation of a husband and wife, while annulling and setting aside all provisions made for permanent alimony for the wife, does not affect the rights of children under any deed of separation or voluntary provisions for alimony. Code § 30-217; Henderson v. Henderson, 170 Ga. 457 (153 S. E. 182); Powell v. Powell, 196 Ga. 694 (27 S. E. 2d 393); Moss v. Moss, 200 Ga. 8 (36 S. E. 2d 431); Brown v. Brown, 210 Ga. 233 (78 S. E. 2d 516), and cases cited therein.

Submitted July 15, 1958 Decided September 5, 1958 Rehearing denied October 10, 1958. James R. Murphy, Thomas B. Murphy, for plaintiff in error. Howe •& Murphy, Harold L. Murphy, D. B. Howe, contra.

2. Where, as here, in an action to cancel a deed, the petition shows that the consideration in the deed was $1 and in settlement of claims for support and alimony for a wife and children against the grantor — the grantor and grantee being husband and wife living in a bona fide state of separation at the time the deed was executed — it fails to allege a cause of action for the relief sought, since the deed cannot be canceled as a conveyance for support of the children, even though the alleged subsequent cohabitation of the grantor and grantee annulled and set aside the deed as to the alimony arrangement for the wife. Clary v. Thornton, 177 Ga. 833 (171 S. E. 704); Brown v. Brown, 210 Ga. 233, supra. This ruling renders all subsequent proceedings nugatory, and no ruling will be made on the other exceptions.

Judgment reversed.

All the Justices concur.