119 Ga. 793 | Ga. | 1904
John L. Conley was tbe administrator of tbe estate of Jonathan Broad, deceased, and became indebted to tbat estate in a large sum, by reason of bis appropriation of its assets, and was removed from bis trust. McCándless became tbe administrator de bonis non of the same estate. An action of trover was brought against Conley by Marcellus E. Thornton, for certain personal property, in which action bail was required, and A. E. Buck and another became sureties for Conley on the bond given by him in that suit. A judgment was rendered in that action against Conley and his sureties, and an execution issuing under that judgment was paid off by Buck and his cosurety. The cosurety having been reimbursed, Buck became the assignee of the execution
Our statute (Civil Code, § 2695) declares that “the following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void,” — followed by an enumeration of the acts. This court, in the case of Westmoreland v. Powell, 59 Ga. 256, held that though the words “and others,” following the word “ creditors,” did not appear in the code then of force, in that section in which the provisions of the statute of 13th Elizabeth were intended to be embodied, the omission did not have the effect of limiting the operation of that statute upon fraudulent conveyances. In view of this decision, the compilers of our present code deemed it proper to insert in the section just cited the important words which had in the former codes been omitted. It is also to be noted that this court further said, in discussing that case, that “the statute of 13th.Elizabeth, in so far as it embraced tort-feasors in its provisions,” was still of force in Georgia; and the court accordingly held that a transfer by Westmoreland of property, made after he had committed an assault upon Powell and.with a view to defeating the collection of damages for such assault, was void. In other words, this court held that a person having a claim for unliquidated damages, because of an injury tortiously committed upon him, was, though not in a technical sense a creditor, nevertheless within the protection of the statute. In our present code (§ 2686), the relation of debtor and creditor is thus defined: “ Whenever one person, by contract or by law, is liable and bound to pay to another an amount of money, certain or uncertain, the relation of debtor and creditor exists between them.” This definition is much broader than is generally supposed, and would seem to include a liability for a wrongful conversion of property for which trover would lie. “ In a multitude of cases it has been repeatedly adjudicated that a party bound by a contract upon which he may become liable for the payment of
Judgment affirmed.