dissenting. 1. The jury returned a verdict in favor of the plaintiffs, and further found that each of them shall share one fifth part of the ‘land in dispute, but that the defendant shall have possession until.his death. The defendant in his motion for new trial excepts to this verdict, on the ground that it is not supported by the pleadings and the evidence. In their petition the plaintiffs allege that about twelve or thirteen years ago they were *420about to institute an action against the defendant, Henry Eyals, praying for a decree declaring the title in the land in dispute to be in them and Henry Eyals jointly or in common, Henry Eyals being then an heir at law of Annie Eyals, deceased, equally with them; but that at his request to the effect that if petitioners would refrain from so doing, and let him use the land for his lifetime, they would at his death have their full share in said land, petitioners, because of his advanced age, and because of their filial feeling for him as their father, refrained from bringing said action, and consented that he should continue to live on said land and use the same for his own benefit. They further allege that in accordance with said agreement the defendant continued to occupy and use said land; that they are now entitled to the possession and enjoyment of their proportionate shares of said land as heirs at law of said Annie Eyals; that they are entitled to a decree declaring that the equitable and legal title to said land vested in Annie Eyals at the time of her death, and- providing for the partition of said land among all the heirs at law of Annie Eyals, deceased; that they are entitled to an accounting from Henry Eyals for all the rents and profits derived from said land since the same was purchased by his wife, Annie Eyals, and the right to have such amount of rents and profits charged up against the share to which he would be entitled as an heir at law in said estate. They pray for a decree declaring that Annie Eyals was seized and possessed of the legal and equitable title in said land, and that petitioners were her heirs at law and entitled to share proportionately in such land or the proceeds thereof; that said land be partitioned and that each of the heirs of said estate receive his share thereof; that the said Henry Eyals be required to account for the rents and profits received by him from said land since the same was purchased from him by his wife, and that the same be charged against his share in said land as an heir at law' of his wife. Two of the plaintiffs are children of Annie Eyals, deceased, and three of them are her grandchildren, the latter being children of Frances Copps, a deceased daughter of Annie Eyals. Annie Eyals died intestate, leaving four children and her husband as her heirs at law. One of these children is now Susanna McArthur. According to the contention of the plaintiffs, the two plaintiffs who are children of Annie Eyals, deceased, are entitled each to one fifth undivided *421interest in this land, and the three grandchildren who are plaintiffs, and who are children of Frances Copps, deceased, are jointly entitled to one fifth undivided interest in this estate, and Henry Ryals and Susanna McArthur are entitled each to a one fifth undivided interest in this land.
This verdict cuts out entirely Susanna McArthur and Henry Ryals, if the same is enforced according to its terms. By the decree which was rendered on this verdict, it was adjudged that Henry Ryals, M. M. Ryals, Annie Thompson, and Susanna McArthur were entitled each to one fifth interest in the land in dispute, and that the grandchildren of Annie Ryals, who are plaintiffs, are entitled jointly to one fifth interest in this land. The objection to the verdict seems to be well taken. There were five plaintiffs, and the verdict awarded to each of them one fifth, interest in the land in dispute. This entirely cut out two of the heirs at law of Annie Ryals. This rendered the verdict illegal, because it was not rendered in accordance with the pleadings and the evidence. The ground of the motion for new trial complaining of the verdict in this respect was well founded, and a new trial should have been granted. This defect in the verdict was not cured by the decree. A decree can not render an illegal verdict legal.
2. I can not agree with the principle announced in the second division of the opinion in this case. If the sale of this land from Henry Ryals to his wife was void for the reason assigned by the husband, he was not precluded from attacking the alleged contract of sale upon the ground that he was a stranger to the title of the wife. In the first place he was a party to the contract; and if the same was void for any reason, he could attack it on such ground. Besides, he was an heir at law of his wife, was a privy in estate with her, and was in no sense a stranger to her title. For this reason I can not agree that the principle announced in Scaife v. Scaife, 134 Ga. 1, Munroe v. Baldwin, 145 Ga. 215, and Williams v. Rhodes, 149 Ga. 170 (supra), is applicable under the facts of this case. The fact that the husband denied that he had ever sold the land in dispute to his wife does not alter the case. If he failed in this contention, he could still assert that if the sale was made it was void because it came within the provisions of section 3009 of the Civil Code, which declares that “No contract of sale of a wife *422as to her separate estate with her husband or her trustee shall be valid, unless the same is allowed by order of the superior court of the county of her domicile.” By an exception to an instruction by the court, in which the jury were told that such a transaction between husband and wife was valid, the defendant in his motion for new trial raised this question; and this question, being thus presented to this court, should be decided by it. Believing that the reply of the court to this objection of the defendant to this instruction is not well taken, I can not go with the majority in this ruling.
For the above reasons I feel constrained to dissent from the opinion of the majority.