Edge v. Calhoun National Bank

155 Ga. 821 | Ga. | 1923

Hines, J.

(After stating the foregoing facts.) ■

The claimant insists that the trial judge erred in overruling her motion for new trial, for three reasons. One is, that he erred in giving certain instructions to the jury. The second is, that he failed to give to the jury certain principles of law applicable to the issues in the case. The third is, that he erred in not holding a juror disqualified to try this case.

The claimant complains of these instructions to the jury, to wit: (1) “Now, gentlemen, I give you in charge a portion of section 3224 of the Civil Code of this State: The following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void: Every conveyance of real and personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with intent to delay or defraud creditors, and such intention known to the party taking.” (2) “I charge you that if you find that the property in question was transferred by J. S. Edge to the claimant, and that his intent was to hinder, delay, and defraud his creditors, and that the claimant either knew or had reasonable grounds for suspicion that such was his intent in transferring the property, the deeds by which the property was attempted to be transferred are void, and it would be your duty under these facts to find a verdict in favor of a cancellation of the deeds and to find the property subject to the execution.” (3) “If you find, however, that at the time of the transfer it was not the intent of Edge to hinder, delay, or defraud his creditors, or that his intent was not known to the claimants and that they had no reasonable ground for suspicion that such was his intent, then your verdict should be — We, the jury, find the property not subject, and find against the cancellation of the deed.” (4) “A bona fide transaction on a valuable consideration, and without notice or ground for reasonable suspicion shall be valid.” (5) “I charge you that fraud will not be presumed, but, being subtle in its nature, slight circumstances may he sufficient to carry conviction of its "existence. I charge you further that transactions between father and children should be scanned with care, and slight circumstances may be sufficient to carry conviction of fraud.”

The first four instructions contain correct abstract principles of law. About this there can be no very serious contention and no doubt. The first, second, third, and fourth instructions contain substantially plain provisions of the Code (§ 3224, par. 2). The first sentence of the fifth instruction is supported by a clear provision of our Code (§ 4626), and by many decisions of this court. Rountree v. Lathrop, 69 Ga. 757; Comer v. Allen, 72 Ga. 1; Strickland v. Jones, 131 Ga. 409 (62 S. E. 322). While the second sentence in the fifth instruction may not have been entirely accurate because the jury were told that transactions between father and children should be scanned with care, without an instruction that badges of fraud must first be shown, and that it was for them to determine from the evidence whether or not badges of fraud had been shown, which called for rebuttal or explanation (Hicks v. Sharp, 89 Ga. 311 (3), 15 S. E. 314), and while we do not think this instruction is supported by the rulings in Woodruff v. Wilkinson, 73 Ga. 115 (3), no point is made in the record upon -the abstract correctness of this instruction; and for this reason we shall deal only with the grounds of error alleged to have been committed by the court in giving this instruction to the jury. Besides, we do not think that this inaccuracy, under the facts of this case, requires the grant of a new trial. The claimant contends that the first and second instructions are not applicable to the facts of the case. This position is untenable. Both are supported by the evidence. Claimant also contends that the first instruction presented the case more favorably to plaintiff than the law authorized, and more favorably to plaintiff than to claimant. The same objection is urged to the second instruction. It is not pointed out how such results follow; and these objections are therefore too vague, general, and indefinite to raise any point for decision by this court. Such assignments can be considered only for the purpose of ascertaining whether or not they state correct abstract principles of law. If they do, then the investigation by this court ends there. White v. State, 141 Ga. 526 (81 S. E. 440); Frank v. Adams, 144 Ga. 270 (2) (87 S. E. 3).

Claimant alleges that the language in the second instruction, to wit, “attempted to be transferred” and “under these facts,” amounted to an expression of opinion by the court upon the evidence. We can not concur in this contention. The court did not trespass upon the province of the jury in giving these instructions, and did not intimate or express any opinion upon the evidence in the case. The claimant contends that the third instruction excluded the right of the debtor to prefer one creditor to another. Such right was not involved in this case; and if this instruction had the effect of excluding from the jury this right, it would have been properly given. The claimant excepts to the fourth instruction on the further ground that it ignored her contention that prior to the time her father became indebted to the plaintiff she had purchased and paid for- the premises in dispute, thus putting title to these premises in her, on which she could rely although her father had never made her a deed. We do not see how this effect follows from this instruction. The claimant excepts further on the ground that this instruction was calculated to confuse and mislead the jury by precluding them from taking into consideration her prior purchase of these lands and payment of the purchase-money in full. The court nowhere in this charge directed the jury to find against the deed of the claimant without taking into consideration these facts, and the exception is not well taken. Finally it is contended that the fifth instruction is argumentative, and impressed the jury with the view that fraud existed from the fact that the deed of claimant was executed after the creation of her father’s debts to the bank, and ignored the fact that at the time of the purchase these debts were not in existence. We do not see how this instruction is subject to these objections. It is clearly not argumentative, and in no way impressed the jury with the view mentioned. A jury of ordinary intelligence could not have received any such impression from this charge. The court therefore did not err in the above instructions for any of the reasons assigned.

We come next to consider the complaint that the court failed to give to the jury appropriate instructions upon the substantial issues involved in this case. It is well-settled law that the trial judge should give to the jury appropriate instructions upon every substantial issue in the case presented by the evidence, and that failure to do so requires the grant of a new trial. It is not alleged that any requests for instructions, oral or written, were preferred by the claimant to the court. She relies solely upon failure of the court, without timely requests, to give to the jury appropriate instructions upon the substantial issues presented by the evidence. The issue in this case was whether the deed from the father to the daughter was a fraudulent conveyance or not. The trial court submitted to the jury instructions appropriate to this issue; and these instructions were full enough to enable the jury to intelligently pass upon and determine this issue one way or the other. The claimant introduced evidence tending to establish her contention that she bought these lands from her father, and paid him therefor prior to the creation of the indebtedness which the plaintiff was endeavoring to collect by levy and sale of the premises in dispute. Her complaint is that the judge did not give to the jury instructions appropriate to this theory of her case. Where the substantial.law covering the real issue in a claim case is given in charge, and more specific instructions are desired by the claimant, appropriate requests for that purpose should be made. Savannah Electric Co. v. Jackson, 132. Ga. 559 (4) (64 S. E. 680); So. Ry. Co. v. Hill, 139 Ga. 549 (5) (77 S. E. 803); Rountree v. Neely, 147 Ga. 435 (94 S. E. 542). Where a party desires an instruction upon some collateral issue in the case or upon some theory suggested by particular testimony relied on by such party, a timely written request therefor should be made; and in the absence of such timely written request it is not incumbent upon the trial judge to call the attention of the jury to such theory, and to instruct them that they should consider such evidence in determining whether such theory is sustained or not. Williams v. State, 120 Ga. 870 (48 S. E. 368). Any failure or omission of the trial judge, in the absence of timely requests, to give fuller instructions to the jury in this case does not require the grant of a new trial.

The son of a codefendant in fi. fa. married the daughter of a juror who tried this ease. The claimant was the daughter of another codefendant under whom she claimed title. The first co-defendant was interested in having the property claimed subjected to the payment of this fi. fa. Was the juror disqualified to try this case? The juror had no financial interest in the result of this litigation. Was he disqualified from relationship to the first codefendant? The marriage of the daughter related her husband to her kin, but did not relate any of her kindred to his. Burns v. State, 89 Ga. 527 (15 S. E. 748); Central R. &c. Co. v. Roberts, 91 Ga. 513 (18 S. E. 315); Wilburn v. State, 141 Ga. 510 (2) (81 S. E. 444). So the court below did not err in holding this juror competent to try this case, over the objection of the claimant that the juror was disqualified.

The verdict is supported by the evidence.

Judgment affirmed.

All the Justices concur.