88 Ga. 355 | Ga. | 1892
This was the case of a claim interposed by the trustee of minor children to property levied upon under judgments against their mother. There was a verdict for the claimant, and the plaintiffs made a motion for a new trial, which was overruled, and they excepted. The following appeared from the evidence: George W. Kries, the father of these children, died intestate, leaving an estate consisting of personalty of the value of $4,500. There were four children of ages ranging at the time of his death from two to ten years. The widow, without administration, took possession of this property, and out of the proceeds invested the sum of $2,500 in real estate, taking the title in her own name. She testified that the money thus invested came out of funds to which ¿the children alone were entitled, the remainder of the estate, which was more than her share, being used or expended by her for. her own purposes. As to the manner in which she contracted the debt to which it was sought to subject the property in dispute, there was a conflict of testimony, witnesses for the plaintiffs asserting and the debtor denying that in obtaining the credit she represented that the property was her own. On this point the testimony for the plaintiffs was, that in March, 1888, she went to their store and stated to one of the firm that she was about to open a family grocery and wished to purchase goods and run an account at their store. "When asked what she had on which to base a credit, she stated that the land in question wa-s hers and that the deed was on record. He told her he would look into it, and if he found she owned the prop
In the motion for a new trial, in addition to the usual grounds that the verdict was contrary to law, evidence, etc., it was alleged that the court 'erred in charging as follows : “ If you should believe from the evidence that the facts are as set out by the claimant, you ought to find that this property is not subject to these fi. fas. This would be true though it should appear from the evidence that at the time when the plaintiffs extended credit to Mrs. Kries, the title was in her and the credit was extended upon the faith of the title being so in her.
It was contended, however, .that the conveyance was void as against the creditors, because the trustee took it with knowledge of their claim and of the intention of the grantee to avoid thereby the payment of a debt. "We do not concur in this view. It appears that the grantor did state to Bond, prior to the making of the deed to him as trustee, that she wanted to avoid the payment of the debt; but this was not the only motive. She also informed him that the property was not hers, but the children’s; he told her the creditors would take the children’s property, and she asked him to aid in securing it for them. He thereupon employed counsel to institute suit on behalf of the children and to draw the deed in question. The purpose expressed in the deed was to place the property where it belonged. It does not appear that any benefit was reserved to the grantor or that more was conveyed than the children were entitled to.
There is authority to the effect that a conveyance by a debtor of his own property in discharge of a debt, though taken by the grantee with the knowledge that it is intended to hinder, delay or defeat other creditors, is good as against the latter, unless the grantee takes more than the amount of his debt, either for himself or for the debtor or others. It is argued that where the law allows a debtor to prefer one creditor to another, it necessarily follows that other creditors may be hindered, delayed or defeated in the collection of their debts; and that the intention of the debtor to accomplish this is immaterial, so long as his act is confined to the mere payment of a debt; that it is the motive to obtain an unlawful, not a lawful, advantage, combined with the actual obtaining of such undue advantage, which renders the transaction illegal as against the party injured
Whatever may be'the true view of the law where a debtor conveys his own property to a creditor, we are satisfied that where one conveys property not his own, which he wrongfully holds, to the rightful owner, the law does not require the latter to yield his rights and decline taking it because the person who has withheld it wrongfully, may, in returning it, intend thereby to keep his own creditors from getting it. One who takes merely what is his own is not punished for considerations which may operate upon the mind of the party who gives it up. In this case the wrongful holder of property was performing a legal and moral duty — was doing that which in the eyes of the law ought to have been done, in placing the property where it belonged. We hold therefore that the conveyance is good as against these creditors, and that they cannot subject the property to sale under their j udgments.
Judgment affirmed.