105 Ga. 339 | Ga. | 1898
The preceding official report furnishes all the information necessary to a clear understanding of the facts of the ca,ge, and sets out the grounds on which it is sought to have the judgment of the court below reversed.
By section 3569 of the Civil Code, it is declared that “An insolvent person can not make a valid gift to the injury of his existing creditors,” etc., and paragraph 3 of section 2695 of thaJ Code, which defines what acts shall be void as against creditors, includes within such acts: “Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor insolvent at the time of such conveyance”; while paragraph 2 of that
The plaintiff at the last trial having conceded that the trust deed under which she claimed was not supported by a valuable consideration, such deed was, as to creditors, as was ruled by
The jury having determined that the deed of trust was valid, •it remains to inquire whether the sheriff’s deed, and that executed to the defendants by John T. Parish as trustee for the plaintiff, passed title to the grantees as against the cestui que trust. In addition to the sheriff’s deed, Cohen claimed under a deed executed by John T. Parish, trustee for his daughter, Minnie Laura Parish. The consideration of thi.s deed was shown, at least in part, to be the settlement of a debt which Parish individually owed to Cohen. Claiming under a deed executed by Parish as trustee, Cohen Avas charged with notice of the trust estate. Bazemore v. Davis, 55 Ga. 505. It is undoubtedly true that, under the terms of the deed creating the trust, Parish had a right, at his own volition and without an order of court, to sell and convey this trust property. The proceeds of such sale, however, if any should be made, Avould belong to the cestui que trust, and must in the hands of the trustee be held for her benefit. The trustee had no right, under the poAver of sale given to him, to sell the trust property and convey the title in payment of his individual debt. Such a conveyance would be a direct misappropriation of the trust property, and Avould carry no title to the grantee Avhose debt was so paid. Cohen recognized the existence, if not the validity, of the trust, and the fact that title Avas held for the benefit of the petitioner, by accepting the conveyance as that of a trust estate, the validity of which depended on the right of the trustee to convey; he took the property, in part at least, in satisfaction, not of a debt due to him by the trust estate, but of a debt due to him by Parish individually. This was a diversion of trust property, if the trust in fact existed, to which Cohen was a- party with knowl
Judgment affirmed.