33 S.E.2d 437 | Ga. | 1945
1. A petition seeking to cancel deeds of record, showing that the grantor for the purpose of hindering, delaying, and defrauding his creditors, conveyed his property to members of his family, including the plaintiffs, who went into possession under deeds properly executed and *156 recorded, was properly dismissed on demurrer, although the petition alleged that "the deeds were not delivered."
(a) He who would have equity must do equity.
2. The petition in this case cannot be construed to be a suit for accounting.
Count 2 is similar to count 1, with the additional allegation that, at the time the three deeds were executed, each of the grantees executed a deed to the properties to A. B. Bagwell, and the deeds were delivered to A. B. Bagwell, but were never recorded; and the defendant, H. O. Bagwell, and S. I. Bagwell received the deeds as executors under the will of A. B. Bagwell, and the properties described in the deeds belong to the estate of A. B. Bagwell. The prayers of count 2 are: (a) that the plaintiffs have judgment against H. O. Bagwell, individually and as executor of the estate of A. B. Bagwell, for one-third each of the estate of A. B. Bagwell, and that the judgment be declared a special lien on the properties, and that the plaintiffs have a general judgment against H. O. Bagwell, individually and as executor of the estate of A. B. Bagwell; and (b) for general relief.
The defendant, individually and as executor of the estate of A. B. Bagwell, filed identical general demurrers to the petition on the following grounds: 1. No cause of action is set forth. (a) It appears on the face of the petition that no cause of action should be sustained as plead, and for that reason the petition should be stricken. (b) A court of equity will not lend its aid to either party to a contract, or privies thereto, founded upon an immoral or illegal consideration, and for that reason said petition should be dismissed. (c) No facts are alleged to entitle the plaintiffs to the relief prayed for. 2. There is a misjoinder of parties defendant. (a) There is a want of necessary parties. 3. The petition is multifarious. (a) There is a misjoinder of causes of action. (b) The petitioners have a full, complete, and adequate remedy at law. 4. *158
There is no equity in the petition. Exception is taken to a judgment sustaining the general demurrers.
1. The petition in this case seeks to have canceled certain deeds executed on January 4, 1922, and to have the property distributed in accordance with the terms of a will executed on December 8, 1920, by the grantor in the deeds. The petition alleges that the deeds were executed for the purpose of hindering, delaying, and defrauding creditors of the grantor. It is alleged that the deeds "were not delivered." The petition makes the allegation that the "petitioners hereby agree to surrender the property mentioned in the last two deeds for the disposition by said executor in terms and compliance with the provision of the will" — the property thus agreed to be surrendered being that portion of the property to which the plaintiffs would be entitled under the terms of the deeds executed January 4, 1922. The petition, therefore, presents a situation in which the deceased grantor executed deeds to the members of his family, including the plaintiffs or those under whom they derive title, conveying all of his creditors. for the purpose of hindering, delaying, and defrauding his creditors. The formal execution of the deeds and the language of the attestation clause raise a prima facie presumption that the deeds were delivered. Bourquin v. Bourquin,
Anderson v. Anderson,This court, in Tune v. Beeland,
131 Ga. 528 ,539 (62 S.E. 976 ), said: "The law brands as fraudulent every conveyance made with intention to delay or defraud creditors, where such intention is known to the party taking. Civil Code, § 2695 (2). The courts will not set aside a conveyance to hinder, delay, or defraud creditors, at the instance of the grantor. Watkins v.Nugen,118 Ga. 375 (45 S.E. 260 ). When a suitor applies for equitable relief, he must come into court with clean hands with respect to the matters concerning which he asks such relief."
Count 2 of the petition makes the allegation that, at the time the deeds in question were executed, the grantees executed quitclaim deeds to the grantor, which were not placed of record. Surely it can not be contended that the grantees in the deeds could convey the property by quitclaim deed back to the grantor, unless first he had effectually conveyed the property to them. This allegation makes perfectly clear the full participation of both the grantor and the grantees in the scheme to hinder, delay, and defraud creditors. The contention of the plaintiffs in error in this case would make it possible for any dishonest debtor to convey all of his property to the members of his family, have the deed duly recorded, put the members of his family in possession of the property, and simply keep manual possession of the deed until such time as his indebtedness had become barred by the statute of limitations, and then call upon a court of equity to cancel the deed of record, and thereby assist him in reaping the benefit of his dishonest conduct. Such a result as this is repugnant to the very word equity. We are unwilling to lay down a rule that would accomplish this result.
We are also of the opinion that the petition in this case runs squarely into the rule laid down in the Code, § 37-104: "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit." While the plaintiffs express their desire and willingness to surrender to the executor the land in their possession, they do not allege that they have surrendered, or even that they are willing to surrender, the rents and profits accruing during the time that the property has been in their possession.
2. This is not a suit for accounting. See Spence v. Brown,
Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents. *161