The defendant in error exhibited his bill on the equity side of the superior court of Washington county against W. H. Fulgham and Jacob Fulgham, as the executors of Matthew Fulgham, deceased, and others, as the heirs at law and legatees under the will of said deceased. The bill alleged that Matthew Fulgham was the executor of one Pilcher, deceased, the father of Sarah Pate, and that in settling with said Sarah, he executed to her a deed to a tract of land comprising three hundred acres in the county of Glascock, as her share or interest in her deceased father’s estate'; that afterwards said Matthew intermarried with said Sarah; that during said coverture he procured her to convey said land to him, which she did upon consideration
1. A court of equity had original jurisdiction to establish lost deeds and other writings until the judiciary act of 1799 conferred a like power on a court of law, but this did not divest a court of equity of this power, but the power is concurrent with a court of law. Ross & Co. vs. Matthew Wright, 12 Ca. 507, in which the court held that, “ Upon the loss or destruction of a promissory note, the holder is
2. This bill is filed quia timet, for the purpose of causing to be delivered and cancelled the deed which Sarah Pate, then Sarah Eulgham, executed to her then husband on the ground that the deed was void, it not having been made by the order of the superior court of the wife’s domicile. Code, §3232.
This court held, under section 1785 of the code, in the case of Hood vs. Perry et al., at October term, 1885 (75 Ga. 310), that a sale made by a married woman to her husband, without being allowed by the order of the superior court of the wife’s domicile, is not only voidable but void. This principle being adhered to, then the deed made by Mrs. Sarah Eulgham to her husband, Matthew Fulgham, can have no effect in the hands of his representative, heirs at law or legatees but to be a cloud upon the title of complainant, and under section 3232, a court of equity may cause the same to be delivered up and cancelled. So we think that this is also a good ground of equity; and we have thus arrived at the conclusion that there is equity in complainant’s bill. This being so, he does not have adequate relief at law; and this disposes of the first and second grounds of the demurrer.
3. The last ground is that the superior court of Washington county did not have jurisdiction to try this case, but the superior court of the county of Glascock, it being the county wherein the land lies. Article 6, section 16, par. 3 of the constitution of this State answers this ground of the
Judgment affirmed.
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The deed from Mrs. FuIgRam to her husband was dated June 11,1881.