Laub v. Burnett

Supreme Court of Georgia

Laub v. Burnett

31 Ga. 304

DecidedAugust 15, 1860

StatusPublished

This text of 31 Ga. 304 (Laub v. Burnett) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Laub v. Burnett, 31 Ga. 304 (Ga. 1860).

Pincite

Opinion

By the Court.

Lyon, J.,

delivering the opinion.

1. The defendant admits by his answer, that notwithstanding the order of the 26th of December, 1859, authorizing the husband of complainant to sell the trust property, that the complainant was opposed to the sale by him. That he had advised her to file a bill to enjoin him from such sale; that he had consented to act for her as her trustee, or next friend, in that proceeding, and that counsel had been employed for that purpose, after all of which he bought the property. Such a sale and purchase can not stand, and the injunction was improperly dissolved.

That part of his answer, in which he sets up her with[309]*309drawing or abandonment of those proceedings, and subsequent assent to the sale, is not in response to the allegations in the bill, but is new matter and in avoidance of the equities- of the bill, and must be supported on the trial by proof.

2. One can not, by his answer, charge himself arid then, by new matter, discharge himself. More vs. Ferrell, 1 Kelly.

3. That the settlement of this property to the separate use of the wife was not bona fide, but to defraud creditors, is also not in response, and if it was, that fact could not avail the defendant, for he is not a creditor of the husband without notice of this settlement, and on the faith of the property being his, nor a bona fide purchaser without notice.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in dissolving the injunction.

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By the Court.

Lyon, J.,

delivering the opinion.

1. The defendant admits by his answer, that notwithstanding the order of the 26th of December, 1859, authorizing the husband of complainant to sell the trust property, that the complainant was opposed to the sale by him. That he had advised her to file a bill to enjoin him from such sale; that he had consented to act for her as her trustee, or next friend, in that proceeding, and that counsel had been employed for that purpose, after all of which he bought the property. Such a sale and purchase can not stand, and the injunction was improperly dissolved.

That part of his answer, in which he sets up her with[309]*309drawing or abandonment of those proceedings, and subsequent assent to the sale, is not in response to the allegations in the bill, but is new matter and in avoidance of the equities- of the bill, and must be supported on the trial by proof.

2. One can not, by his answer, charge himself arid then, by new matter, discharge himself. More vs. Ferrell, 1 Kelly.

3. That the settlement of this property to the separate use of the wife was not bona fide, but to defraud creditors, is also not in response, and if it was, that fact could not avail the defendant, for he is not a creditor of the husband without notice of this settlement, and on the faith of the property being his, nor a bona fide purchaser without notice.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in dissolving the injunction.

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Bluebook (online)

31 Ga. 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laub-v-burnett-ga-1860.