69 Ga. 557 | Ga. | 1882
John H. Robert, of South Carolina, by his will devised certain property in that state to his daughter, E. A. Robert, who afterwards intermarried with N. Cruger. By the terms of the devise, “ the use of the property, both real and personal, was given her during her natural life, and then to the children of said daughter who may survive her, in equal distribution.”
Ann M. Robert, the mother of Mrs. Cruger, by her will, in 1851, likewise devised to Mrs. Cruger certain property, “its use and enjoyment during her natural life, and no longer, and then to her children who may survive her, in equal distribution.”
In June, i860, W. P. Hill made a deed to N. Cruger and his heirs, etc., to lots 386, 391 and west half of 384. Whitehead, in December, 1859, also made a deed to N.
The jury, under the evidence and charge, found that the “ Sherwood place ” should be sold as the property of N. Cruger, by the sheriff, and the proceeds brought into court to be distributed under its order. Plaintiff in error made a motion for a new trial on various grounds as set forth in the record, which was refused, and he excepted.
In the case of Doe, ex dem. of Lamar, vs. Turner, tenant in possession, this court sáid: “ The recitals in a deed only bind the parties.to that deed and those claiming under them, but are not evidence against one who does not claim under any of the parties to it, either as a privy in land or as a privy in estate, but under a title wholly independent of them.” 48 Ga., 329. In the case of Hanks, adnir, vs. Phillips, it was ruled: “ Recitals in a private deed only bind parties and privies, and are not evidence against one not claiming under the deed.” 39 Ga., 550. A like ruling was also had in 40 Ga., 479. In the case of Penrose vs. Griffith, 4 Binney (Penn. Rep.)231, it was held: “A deed containing recital of another deed, is evidence of the recited deed against the grantor, and all persons claiming by title derived from him subsequently; but it is not evidence against one who claims from him by title prior to the deed which contains the recital, nor is it evidence against a stranger.”
We do not understand that these creditors claim under the deed made by Cruger in 1870, to Jennings, trustee. On the other hand, they assail the integrity of that deed as being fraudulent and void as to them. They insist Cruger took his title under the deeds of 1859 and i860, conveying to him this property, and being on record, they gave credit on the faith of it as his property, and that his attempted conveyance to his wife’s trustee was void as to them, they being creditors at the time, and there being no evidence in the record that he conveyed for value, and he being insolvent. We find, therefore, no error in the charge on this point as made.
In the absence of any proof that the trustee, Jennings, had paid any consideration for the Sherwood place, conveyed by the deed of 1870, made by Cruger, it was for the jury to say whether it was or not fraudulent as to creditors, and hence, we think §1952 of the Code on the subject of “ acts void as to creditors,” wás properly given in charge by the court.
Judgment affirmed.