O.C.G.A. § 19-5-7 (2019)

Annotations

JUDICIAL DECISIONS Law should be strictly construed since it is a restraint upon the alienation of property by the owner. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827, 1959 Ga. LEXIS 349 (1959). Construction. - Restriction upon the free alienation of property by the owner is contrary to public policy, and will not be extended by construction beyond the plain intent and meaning of the law. Lamar v. Jennings, 69 Ga. 392, 1882 Ga. LEXIS 233 (1882); Russell v. Rice, 103 Ga. 310, 30 S.E. 37, 1898 Ga. LEXIS 116 (1898); Wallace v. Wallace, 189 Ga. 220, 5 S.E.2d 580, 1939 Ga. LEXIS 668 (1939). When section is operative. - Law was operative only on conveyances made during pendency of divorce action. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827, 1959 Ga. LEXIS 349 (1959). Law did not affect conveyance after separation, but before action for divorce was filed. Wallace v. Wallace, 189 Ga. 220, 5 S.E.2d 580, 1939 Ga. LEXIS 668 (1939). Section’s effect upon alienation. - Law operated to render alienation subor-

dinate to any disposition of scheduled property made by jury in the final verdict. Stephens v. Stephens, 168 Ga. 630, 148 S.E. 522, 1929 Ga. LEXIS 200 (1929). Law did not apply to suits for alimony alone but applied to cases when a divorce proceeding was pending. Davis v. Leach, 228 Ga. 139, 184 S.E.2d 454, 1971 Ga. LEXIS 486 (1971). Law did not operate in favor of third parties. Lamar v. Jennings, 69 Ga. 392, 1882 Ga. LEXIS 233 (1882). Equitable proceeding to set aside fraudulent conveyance. - Former Code 1933, § 30-112 (see now O.C.G.A. § 19-5-7) did not prevent equitable proceeding against grantee to set aside fraudulent conveyance, under former Code 1933, §§ 28-101 and 28-201 (see now O.C.G.A. §§ 18-2-1 and former 18-2-22), of real property by the husband with intent to defeat the wife’s recovery of alimony since the grantee had knowledge or reason to suspect such intent since the grantee in such case was not an innocent purchaser. Wood v. McGahee, 211 Ga. 913,

89 S.E.2d 634, 1955 Ga. LEXIS 517 (1955). Law contemplates rendition of final verdict by jury in the action for divorce, and did not contemplate that the restraint against alienation shall continue after rendition of such verdict was no longer possible. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827, 1959 Ga. LEXIS 349 (1959); Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416, 1972 Ga. LEXIS 502 (1972). When property sold was included in the schedule, sale did not vest title in purchaser so as to prevent the vesting thereof in the wife, according to the verdict of the jury. The purchaser bought subject to the verdict, and the purchaser’s want of actual notice does not protect the purchaser. Venable v. Craig, 44 Ga. 437, 1871 Ga. LEXIS 398 (1871). When parties fail to schedule or incompletely schedule property, final decree leaves parties where it finds them, and the separate title of each to party to their property is unaffected by the decree. The same rule is applied to indebtednesses existing between them. Sparks v. Sparks, 127 Ga. App. 657, 194 S.E.2d 621, 1972 Ga. App. LEXIS 989 (1972). Judgment obtained for pre-existing debt. - Valid judgment obtained against the husband during the pendency of a suit for a divorce, founded on a debt contracted before the separation of the husband and wife, is a good lien upon property set apart to the wife on the final hearing. Carithers v. Venable, 52 Ga. 389, 1874 Ga. LEXIS 300 (1874). Property disposed before institution of divorce action unaffected. - Law construed in connection with its cognate sections did not restrict a transfer by a husband of his property, made bona fide and for value, prior to the institution of a divorce action, but was operative only on conveyances by the husband made during the pendency of a libel for divorce. Singleton v. Close, 130 Ga. 716, 61 S.E. 722, 1908 Ga. LEXIS 397 (1908). Property not disposed of by verdict ultimately unaffected. - Restraint on alienation imposed by law was operative only insofar as it rendered the alienation subordinate to any disposition of the spe-

cific property which might be made by the jury in the final verdict; and this restraint did not affect property not disposed of by the final verdict granting the divorce. Almand & George v. Seamans, 89 Ga. 309, 15 S.E. 320, 1892 Ga. LEXIS 333 (1892). Property disposed before institution of divorce action unaffected absent lis pendens. - Since a Chapter 7 debtor pre-petition executed a deed conveying the debtor’s interest in property to the debtor’s spouse as part of the parties’ settlement agreement before a divorce proceeding was filed, constraint on alienation did not apply because the debtor did not allege that the debtor filed a notice of lis pendens. In re Randolph, 546 B.R. 474, 2016 Bankr. LEXIS 620 (Bankr. N.D. Ga. 2016). Death of party releases restraint on alienation of property. - When action for divorce filed by wife against her husband abated upon her death, there could be no verdict in the divorce suit as contemplated by law and there was no longer any restraint upon the alienation of the husband’s property. Chatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827, 1959 Ga. LEXIS 349 (1959). Since the death of one of the parties makes a final verdict impossible, the restraint on the husband’s transfer of title is removed. Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416, 1972 Ga. LEXIS 502 (1972). Possession of realty by wife and children as inquiry notice. - Actual possession of the realty by the former wife and children was sufficient to put all who might purchase from the husband on notice and on inquiry as to what interest, claim, or rights they might have therein, and this notice by reason of possession was effective as to the property possessed whether or not a lis pendens notice was filed under the requirements of law. Waddell v. City of Atlanta, 121 Ga. App. 94, 172 S.E.2d 862, 1970 Ga. App. LEXIS 1120 (1970). Effect of pendency of action on mortgage or conveyance. - Mere pendency of action for alimony will not disable defendant therein from making bona fide mortgage or conveyance of unencumbered property over which the court has not taken nor been asked to take any

direct jurisdiction in order to administer or secure it for application to the claim for alimony, and the mortgagee of such property has priority over a judgment for alimony subsequently rendered. Coulter v. Lumpkin, 94 Ga. 225, 21 S.E. 461, 1894 Ga. LEXIS 55 (1894). Equity will, by injunction, prevent husband from alienating his property to defeat alimony, it being well established, if others cooperate with him to perpetrate such wrong, the same remedy is proper as against them. Gray Bros. v. Gray, 65 Ga. 193, 1880 Ga. LEXIS 137 (1880). When injunction should not issue. - Injunction should not issue when husband is neither attempting nor threatening to sell or encumber property, and no other grounds for the issuance of the writ

is shown. Melvin v. Melvin, 129 Ga. 42, 58 S.E. 474, 1907 Ga. LEXIS 300 (1907); Ramsey v. Ramsey, 175 Ga. 685, 165 S.E. 624, 1932 Ga. LEXIS 307 (1932). Not error to refuse charge of section when action for alimony only. - In a suit by a wife against her husband for alimony when no suit for divorce was pending, and no schedule of the husband’s property was filed, it is not error to refuse to give former Civil Code 1910, § 2955 in charge. Chandler v. Chandler, 161 Ga. 350, 130 S.E. 685, 1925 Ga. LEXIS 352 (1925). Bona fides question for jury. - It was a question of fact for the jury to decide whether a deed had been executed bona fides in payment of a pre-existing debt. Mathews v. Mathews, 162 Ga. 233, 133 S.E. 254, 1926 Ga. LEXIS 148 (1926).

RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. 8C Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 407. C.J.S. 27A C.J.S., Divorce, § 212. ALR. Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306. Right of husband or wife to maintain replevin against other, 41 A.L.R. 1054. Divorce as affecting estate by entireties, 52 A.L.R. 890; 59 A.L.R. 718. Injunction pendente lite in suit for divorce or separation, 164 A.L.R. 321. Trust income or assets as subject to

claim against beneficiary for alimony, maintenance, or child support, 91 A.L.R.2d 262. Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation, 15 A.L.R.4th 224. Lis pendens as applicable to suit for separation or dissolution of marriage, 65 A.L.R.4th 522. Divorce and separation: effect of court prohibiting sale or transfer of property on party’s right to change beneficiary of insurance policy, 68 A.L.R.4th 929. Divorce and separation: health insurance benefits as marital asset, 81 A.L.R.6th 655.