65 Ga. 542 | Ga. | 1880
Monroe and Douglass caused to be levied an execution, predicated upon a decree in equity, on a tract of land as the property of Richard V. Carter. The same Richard V. Carter claimed the land levied on as administrator on his father’s estate, alleging that the land was not his own property, but belonged to the estate of his father; on that issue, whether it was his own or his father’s property at the date of the decree, the jury found that it belonged to him individually, so far as the plaintiffs’ debt was concerned, and was subject to the execution; and the court below-having refused a new trial, as administrator on his father’s estate, Richard V. Carter brings the case here.
The grounds of the motion 'for a new trial, besides the usual grounds that the verdict is contrary to law and evidence, etc., are, that the court erred in admitting in evidence .the execution, as it did not follow the - decree, and as the decree did not follow the verdict; and in
The facts are these: The execution is dated the fifth day of April, 1876, and was introduced in evidence, the levy and possession of defendant Carter proven, and the plaintiffs closed. Then the claimant showed a deed from himself to his father, dated the fourteenth day of April, 1875, consideration forty-one hundred dollars, and letters of administration on his father’s estate dated the tenth day of April, 1877. He then testified that he is claimant as administrator and is the same man who made the deed to his father, and the defendant in execution; that the deed was executed when it bears date ; that he then turned the land over to his father and worked it for him; that he owed his father forty-one hundred dollars and sold him the land to pay it ; that when levied on he was holding the land for his father; .that he gave no note or other evidence of indebtedness for what he owed his father, but it was borrowed money, three thousand dollars at one time, soon after the war, and the balance at other times,
It seems that other parties were interested in that litigation and in the verdict and decree, but the rights of these plaintiffs were thus settled by the verdict and decree.
I, 2, 3. So that the court did not err in admitting the execution, for it followed the decree, nor in admitting the record of the ejectment cause and the equitable plea and verdict and decree, for they were essential, with the conveyances, to fix the lien of the plaintiffs; nor in the charge, for the mortgage in equity opex'ated as a lien from its date as against the Caxders, father and son, who seemed both, certainly the son,, to have had full knowledge actually of the whole affair, and if the father did not, the lis pendens and his purchase during the pendency charged him with notice. The execution follows the decree exactly, the court deducting the set-off fi'om the plaintiffs’ debt, and the only pretext of difference is that the decree
4, 5. The verdict is fully sustained by the evidence. About a month before the decree, Carter sold to his father during the pendency of the ejectment and equity case, and the whole affair looks fraudulent, as his father held no note nor other evidence of the son’s indebtedness to him. But without regard to any badges of fraud —such as the relationship of the parties—the retaining possession of the land—the character of the indebtedness, etc., etc., it is enough to say that the decree and the admissions in the answer or equitable plea of Carter, are sufficient to give priority to the plaintiffs’ lien over the claimant’s deed, which was four years junior to the mortgage.
The request to charge about the debtor’s right to prefer creditors was not in writing, and if it had been it was not error to refuse a new trial on this ground, as it could not have affected the verdict.
Judgment affirmed.