Opinion
20371.
ARGUED FEBRUARY 9, 1959.
DECIDED MARCH 6, 1959.
Cancellation, etc. Cobb Superior Court. Before Judge Manning. November 14, 1958.
Edwards, Bentley, Awtrey Bartlett, Bentley, Awtrey Bartlett, for plaintiff in error.
McFarland Cooper, contra.
1. A deed executed by a husband living separate and apart from his wife, with the intent and purpose of defeating the wife's right to alimony, is invalid as to the wife, if the grantee knew, or had reasonable grounds to suspect, the intent of the husband in conveying the property. Wood v. Wood, 166 Ga. 519 ( 143 S.E. 770); Stephens v. Stephens, 168 Ga. 630 ( 148 S.E. 522); McCallie v. McCallie, 192 Ga. 699, 700 ( 16 S.E.2d 562); Von Kamp v. Gary, 204 Ga. 875 ( 52 S.E.2d 591); Wood v. McGahee, 211 Ga. 913, 915 ( 89 S.E.2d 634). In the present case, it is not alleged that the defendant had actual notice of, or reasonable grounds to suspect, fraudulent intent on the part of the husband. The petition therefore failed to allege a cause of action based upon fraud.
2. It is the rule in this State that cancellation of a deed may be granted only where both the grantor and the grantee are made parties in the action for cancellation. Sowell v. Sowell, 212 Ga. 351 ( 92 S.E.2d 524); Kenner v. Kenner, 214 Ga. 381 ( 104 S.E.2d 896). The petition being fatally defective for failure to make the husband a party defendant, allegations as to the filing of a notice of lis pendens (under Code § 30-112, as amended by Ga. L. 1950, pp. 365, 366) are insufficient to invoke any ruling by this court in the present case.
Judgment reversed. All the Justices concur.
ARGUED FEBRUARY 9, 1959 — DECIDED MARCH 6, 1959.
Mrs. Vonda Jean Young Smith brought her petition in Cobb Superior Court against W. W. Heidelberg, and alleged: On November 6, 1957, she filed her petition for divorce and alimony against James Harry Smith in Fulton Superior Court, and prayed that described property located in Cobb County be awarded to her as a part of her claim for alimony. On November 7, 1957, she duly filed with the Clerk of the Superior Court of Cobb County her notice of lis pendens. On November 8, 1957, there was filed for record a warranty deed from James Harry Smith to the defendant, which deed conveyed the same property described in the notice of lis pendens. No consideration passed between the grantor, James Harry Smith, and the defendant, "the said W. W. Heidelberg having testified on June 13, 1958, in Fulton Superior Court that he did not know the exact amount of money James Harry Smith owed him from January 6, 1956, through November 6, 1957, and that he had never kept any written record or statement of account on the indebtedness allegedly due." The deed from James Harry Smith to the defendant was an act on the part of Smith to hinder, delay, and defraud the petitioner in her claim for alimony. The Superior Court of Fulton County awarded the petitioner the property described in the lis pendens notice and in the deed from Smith to the defendant, as permanent alimony, as shown by a copy of the divorce and alimony decree attached to the petition as an exhibit. The petitioner has no adequate remedy at law.
The prayers were: that process issue; that the warranty deed from James Harry Smith to the defendant be set aside and canceled; and that costs be assessed against the defendant.
The general demurrer of the defendant was overruled, and the exception is to that judgment.