« SebelumnyaLanjutkan »
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. Gifr 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 monoy. Id. 3. Gift Causa MORTIS MAY BE MADE BY ONE IN APPREHENSION OF DRATE
FROM A SURGICAL OPERATION to which he intends voluntarily to expose
himself, if such operation is made necessary by a present disease. Id. 4. Girt 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. B. Girr Causa MORTIS NEED NOT BE MADE IN EXTREMIS, when there is no
time or opportunity to make a will. Id. 6. Girt 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 os capes the peril in contemplation when it was made; bat if he does not recover, the gift is good, though his death results from a cause not appro. hended by him. Id.
See EVIDENCE, 3–6.
HOMESTEAD. 1. SUFFICIENCY OF SURVEYOR'S AFFIDAVIT or Plat op. — The surveyor's which the jurisdiction to secure the homestead is exercised: Georgia
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 ander
section 2008 of the Georgia code. T'imothy v. Chambers, 163. 2. RegistraTION OF Plat or. — The law does not require the plat to be
recoriled in the county io wbich the land lies, but only in the county in
code, section 2009. Id. & PRESUMPTION IN FAVOR OF 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 EsJOYED
- 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. 8. 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. 8. 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 home
stead is in value largely in excess of the amount allowed by law, the lovy 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 satis
faction of the judgment. ld. 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.
HUSBAND AND WIFE. 1. HUSBAND AND WIFE MAY MAINTAIN JOINT ACTION FOR BREACH OF Con.
TRACT OF BAILMENT WHEN. - Where a husband and wife enter into a contract of bailment with a person, and compensate him for such bail. ment, 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, j'et 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 y. Wriylt, 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. 8. Id. - CONSIDERATION. – A promise by a married woman to reconvey cer.
tain 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 con
sideration, 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 objectionable because not to be perforined within a year, when no time for
performance is stipulated. Id. 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 recon vey. 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 hus.
band 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 recon.
vey 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 en
forced against her during her lifetime. Id. 9. ID. — Parog Proof of CONSIDERATION. – 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 volun. tary 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 proinises 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 in
effectual attempt to reconvey. Id. 13. BOND 'ro 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 couditioned 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 member. ship 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 con
dition of the bond. Zimmer v. Settle, 638. 14. SEPARATE PROPERTY. - If a inarried 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 proportion. ate to the moveys 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 pur
chase 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. tentiou the title would vest in the community. Id.
INJUNCTIONS. 1. CONDITION OPON WHICH MAY ISSUE. Whoro conditions remain to be
performed by both parties to the litigation, an injunction should not be granted which absolutely binds one person to perform his part of the conditions, while it leaves the other party free. The party in whose favor the injunction is granted should first be required to give a secured bond that he will perform his part of the conditions. Macon eta R. R.
Co. v. Gibson, 135. 2. INJUNCTIONS, ISSUE OF, UPON CONDITION. — The granting or continuing of
an injunction is not a matter of strict right in the parties, but of sound discretion in the judge of the court, and the court, whether of law or of equity, shonld always impose just torms as a condition to its interference
by interlocutory injunction in behalf of suitors. Id. 3. INJUNCTION TO PROTECT PUBLIC INTERESTS, WHO MAY APPLY FOR —
Where a statute amending a railroad charter provides that the road shall run in and through the corporate limits of a town, upon certain conditions, the citizens of the town, upon offering to comply with their part of the conditions, have, as a class, such special and particular interest in the matter involved as will support an application for an injunction to protect that interest. Such interest being common to all of such class as a community, and it being composed of numerous individuals, some may sue in behalf of all. Id.
See TRADE-MARKS; TRESPASS.
INSURANCE. 1. WHAT WILL CONSTITUTE CONTRACT. – Whero, prior to the expiration
of a policy of insurance, the company informs the assured that his insur. ance will be renewed if he does not give notice to the contrary, and not receiving notice, the company issues a policy under its custom and previous dealing with him to allow thirty days after the policy issues and takes effect in which to pay the premium, and the insured, eight days after the issuance of the policy, requests of the company, and is granted, thirty days' additional time in which to pay the premium, a contract of insurance exists between the company and the insured at the time of a loss occurring two weeks after such request, the company having received the check of the insured for the premium two days subsequently to the loss, and having held it for two weeks without ob.
jection, Long v. North British etc. Ins. Co., 879. 2. Right OF ASSURED TO SURRENDER POLICY AND COMPEL RETURN OY
PREMIUMS. – If an insurance has been effected, and the perils insured against exist for any period of time, however short, the assured is not entitled to insist that the policy be canceled and part of the premium returned to him, by the common law, nor under a statute declaring that he is entitled to a return of the premium, when no part of his interest in the thing insured is exposed to the perils insured against, or that when insurance is made for a definite time, and he surrenders his policy before the expiration of that time, he shall be entitled to such proportion of the premium as corresponds with the unexpired time. Joshua Hendy Mch. Works v. American etc. Ins. Co., 33.