39 Ga. App. 344 | Ga. Ct. App. | 1929
In the present case the defendant orally moved to dismiss the petition, upon the ground that it failed to set forth a
Although the petition is, of course, more brief and succinct than the evidence, we think that in the particular ease they were in substantial accord, and thus that, while a technical motion for a non-suit would not have been good, the motion as made was rightly sustained, since from the facts both as stated in the petition and as shown by the evidence, there was no liability in law. Kelly v. Strouse, O’Connor v. Brucker, supra.
Chenoweth sued Williams to recover $236.49, basing his claim upon the following facts: The plaintiff was the owner of certain real estate in the city of Quitman which he agreed to sell to the defendant for the price of $5000. Shortly after the agreement, the plaintiff caused a deed to be drawn and tendered to the defendant upon the terms stated. In the meantime the defendant had examined the public records and had found that there were outstanding executions against the plaintiff to the amount of about $1400 (some of which, however, were dormant), and, because of the executions, objected to the title. But the plaintiff had previously executed a deed conveying the property to a Mrs. Dukes to secure an indebtedness of $4000, which deed contained a power of sale authorizing Mrs. Dukes upon a failure of the plaintiff to pay the debt at maturity to advertise and sell the property and to make conveyance to the purchaser. This indebtednes.s had matured and the power was ripe for exercise. Whereupon, in view of the outstanding executions against the plaintiff, he and the defendant made a supplemental agreement, to wit: The plaintiff would cause Mrs. Dukes to advertise the property under the power of sale, and the defendant would “bid it in as'cheap as he could” and would pay the amount of the indebtedness to Mrs. Dukes, together with the accrued taxes; and that he would then pay to the plaintiff the difference between the aggregate of these items and $5000, the price originally agreed upon. It being inconvenient for one or both of the parties to attend the sale, they appointed one Knight to represent them both,
Such of the executions as were not dormant constituted a lien upon the property, though subject to the security deed in favor of Mrs. Dukes, and it was the intention of the parties that in such sale under power the defendant would acquire the title unincumbered, that is, relieved of the executions. The expressed purpose in making the arrangement was to salvage as much as possible for the plaintiff out of the sale to the defendant, after satisfying the taxes and the indebtedness to Mrs. Dukes, although it was understood that the public would have the right to bid, and if the property brought more than the Dukes claim (and the taxes) “the difference would be subject to the executions.”
After the sale under the Dukes paper and the execution of a deed to the defendant in pursuance thereof, for which he paid to Mrs. Dukes $4666.31, this being the full amount of her claim and the sum at which the property was bid in, and after further paying city, State, and county taxes in the ampunt of $97.23, thus obtaining clear title to the property for the aggregate sum of $4763.51, the defendant refused to pay the plaintiff the difference between that amount and the $5000, as agreed upon, in fact denying that he had made.any such agreement.
The motion to dismiss the case was upon the ground that the agreement as shown both by the pleadings and the evidence was upon its face intended to hinder, delay or defraud creditors, contrary to the law as contained in the Civil Code, § 3222. By the undisputed facts it appears that the plaintiff was seeking to make a sale of property, which was subject to executions against him, upon such terms as would enable him to save for himself a portion of the proceeds, when the same should have gone to his creditors.
A proper construction of that portion of the agreement which recognized that the public would have the right to bid, and provided that if the property brought more than the taxes and the indebtedness to Mrs. Dukes the remainder of the proceeds would be subject to the executions, is that, while the excess of the defendant’s bid above these items would go to creditors, the difference up to $5000 would still be paid to the plaintiff; so for the reason that it could not have been expected that the defendant would ever bid more
If it could be said that the part of the agreement to which we have just referred contemplated that other bidders at the sale might run the property to a price iir excess of $5000, and that in such event the difference between the sum of the Dukes claim and the taxes on the one hand and the proceeds on the other would be subject to the executions, the plaintiff is yet not-absolved. As we have just stated, there could have been no expectation that the defendant himself would run the property to a higher figure than that at which he agreed to buy from the plaintiff, and the mere fact that the right of others to bid was recognized does not purge the transaction as between the plaintiff and the defendant, where they intended that if possible the defendant would bid in the property at such a sum as would net the plaintiff a difference between the indebtedness under the security deed plus the taxes, and the agreed purchase price; and this is true notwithstanding the parties may not have done, and may not have intended to do, anything to discourage other prospective bidders.
The rights of others, (including the execution creditors) to appear and bid at the sale was not a matter within the control of the plaintiff and the defendant. Hence they could ■ not have failed to recognize such right, and the fact that they spoke of it as a possibility or contingency does not strengthen the plaintiff’s position. The plaintiff was seeking to enforce an executory agreement, the subject of which was his equity in the property over and above the indebtedness to Mrs. Dukes and the taxes. It is manifest that the purpose of this agreement was at least to delay creditors, and an agreement having such a purpose stands no better before the law than one which was intended actually to defraud them. The language of the Code is “delay or defraud.”
It is well settled that the court will not lend its aid to the enforcement of such an undertaking. Whether the amount claimed to be due still is subject to garnishment in favor of creditors is no sufficient answer, because it is the intention of the parties, and not the consequences, which causes the court to withhold its remedies. Compare Cronic v. Smith and the other cases cited with it in the first headnote. The rule is different where the contract has been executed. Parrott v. Baker, 82 Ga. 364 (4) (supra).
Counsel for the plaintiff in error rely upon the case of" Mathews
We do not mean to say that the parties in this case consciously intended to do wrong. It is the general rule that fraud may arise as an inference of law, and that where an agreement is made under circumstances the result of which must necessarily be to hinder or delay creditors, it will be presumed in law fhat such was the inten
The record shows that the agreement sued on was not made by the plaintiff in person, but by another acting fo.r him; but since the agreement as thus made is the foundation of the action, the plaintiff is bound by such infirmities as it may possess. .
Judgment affirmed.