156 Ga. 728 | Ga. | 1923
1. Where a wife claimed the property levied on under a deed from her husband, dated Dee. 17, 1920, the husband being the defendant in ii. fa., the court did not err in refusing to permit the wife on the trial of the claim case in February, 1923, to answer a question seeking to elicit from her the amount of her stock of merchandise at the time of the trial, she having testified that she did not know how much stock she carried at the date of said deed; the evidence thus sought to be elicited being immaterial and irrelevant to the issue on trial.
2. The court did not err in admitting in evidence, in behalf of the claimant, certain cheeks in favor of the claimant by "her father on the Concord Banking Co., the same having been drawn at various dates between Oct. 1, 1907, and Dec. 22, 1919, and having been paid by said bank, over the objection of plaintiff that they were irrelevant and immaterial. This evidence was admissible to show the ability of the plaintiff to advance money to her husband and to pay for the premises in dispute.
3. The court did not err in admitting in evidence, in behalf of claimant, certain checks drawn by her between May 5, 1920, and Oct. 13, 1920, two of said checks, oné for $25 and the other for $140, being payable to her husband, and three of them being payable to third parties, over the objection of plaintiff that they were irrelevant and immaterial. These checks were properly admitted as evidence tending to show the financial worth of plaintiff and her ability to advance, and the actual advance of, money to her husband.
4. The court instructed the jury as follows: “The claimant, in support of her claim, introduces in evidence a certain deed from M. J. Willing-ham to his wife, Annie Laura Willingham, purporting to convey the property in dispute to the claimant in this case for an alleged consideration of $1500, this deed dated the 17th day of Dee., 1920, and recorded on the same day here in the clerk’s office of Meriwether superior court. Now, gentlemen, the effect of this deed made by M. J. Willingham was to put whatever title M. J. Willingham had in the property in dispute in his wife, the claimant in this case; and nothing else appearing, why the property could not be subjected, and you should find the property not subject, nothing else appearing in the case. Now the plaintiff in fi. fa. attacks that deed and says that it. is void and
5. The court instructed the jury as follows: “ If you find, gentlemen, that the facts concur as to the purpose to delay or defraud creditors, and that such intention to delay -or defraud, if any, was known to the claimant, Mrs. Willingham, then that would vitiate the deed from M. J. Willingham, the defendant in fi. fa., to the claimant, and the deed would be fraudulent as against the plaintiff in fi. fa. in this case, and
6. The court charged the jury as follows: “Now, the court instructs you, gentlemen of the jury; if there was an intention on the part of the defendant in fi. fa. to delay or defraud his creditors, but such intention was not known to the claimant, the party taking the deed, and the conveyance was made without notice to her or ground for reasonable suspicion on her part, why then the conveyance would be valid notwithstanding it was the intention on the part of the defendant in fi. fa. in making the conveyance to hinder, delay, and defraud his creditors.” The plaintiff insists that under the law he was only required to show that the intention was to hinder, or to delay, or to defraud, and that any one of said propositions was all that the law requires to be proved in order for the plaintiff to prevail in the case. Held, that this criticism of this instruction is without merit. The court did not instruct the jury that it must be shown that it was the purpose of the husband to hinder, delay, and defraud his creditors, before the plaintiff could succeed; but on the contrary instructed the jury that if the husband intended to delay or defraud his creditors, and if such intention was not known to the wife and she took the conveyance from her husband without notice or ground for reasonable suspicion, then the conveyance would be valid although it was the intention of the husband to hinder, delay, and defraud his creditors.
7. The court instructed the jury as follows: “Now, gentlemen, if you find any act done by M. J. Willingham was with the intention of delaying or hindering a creditor, the plaintiff in this case would be a creditor in the sense of this law — such would be a legal fraud, and if such intention was known to Mrs. Willingham at that time, why then the deed from the defendant in fi. fa. to the claimant would be void.” Plaintiff excepts to this charge on the ground that it is an incorrect statement of the law, in that “ it left the jury under the impression that the delaying or hindering intended by M. J. Willingham must have been known to Mrs. Willingham at that time;” and that any intention on the part of the defendant to hinder or delay creditors at any time before the making of the deed, known by her, would render the deed void. Held:
8. The court charged the jury as follows: “ Now,' gentlemen, it is not necessary that the intention to delay, if any, should be coupled with the intent to defraud; an intention may be entirely honest. Fraud, in this connection, does not necessarily mean corrupt or dishonest motive.” Plaintiff excepts to this charge on the ground that it was not full enough, and that the court should have instructed the jury that, if such delay existed, the plaintiff' should prevail in .the ease. Plaintiff does not complain that the charge given was abstractly incorrect. Held: If plaintiff wished further and fuller instructions upon this subject, he should have duly requested the court to give such instructions.
9. The court charged the jury as follows: “ The burden of proving the fraud is upon the plaintiff in this case, ana he must prove the fraud by the preponderance of the evidence.” Plaintiff excepts to this charge, on the ground that there is no rule of law requiring proof of fraud by a preponderance of the evidence, and that the language of the court was confusing and misled the jury, in that the court, after giving the above charge, instructed the jury, that, “fraud, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” Held, that this instruction, under the facts of this case, was erroneous. In a claim ease where the wife sets up title to the property levied upon under a deed from her husband, and his creditor attacks the same upon the ground that it is a fraudulent conveyance, intended to hinder, delay, and defraud such creditor, the law does not put upon the creditor the burden of establishing fraud in the conveyance. On the contrary, it puts the burden upon the husband and wife. They must show that the transaction as a whole is free from fraud. See authorities cited in the fourth headnote.
10. The court charged the jury as follows: “You may look to the consideration passing from the claimant in this case to the defendant in fi. fa. Was the consideration paid by Mrs. Willingham, the claimant in this ease, to the defendant in fi. fa., M. J. Willingham, her husband, adequate? Was the amount paid what the property was reasonably worth, or was it grossly inadequate?” Plaintiff excepts to this charge on the ground that it contains an intimation or expression by the court to the jury that the claimant had paid to her husband a consideration for the property levied upon. Held: The contention of the plaintiff being that the deed from the husband to the wife was a voluntary conveyance and without consideration, this charge assumed the existence of such consideration, and to this extent was erroneous. Byne v. Anderson, 67 Ga. 466 (5).
11. The court charged the jury as follows: “Mere inadequacy of consideration in a deed from a husband to his wife, even if he is insolvent at the time of its execution, will not of itself alone void the deed at the instance of creditors, if there was no intention to delay or to hinder or defraud. An inadequacy of consideration, if gross, would be a bad; •> of fraud, and might be so gross when combined with other circumstances
12. The court charged the jury as follows: “Now, then, gentlemen, it is for the jury to determine whether badges of fraud 'have been shown as to call for an explanation, and is for the jury to determine, if they find badges of fraud, whether they have been rebutted or have been satisfactorily explained. If the jury find badges of fraud and also find if the fraud was concurrent between the defendant in fi. fa. and claimant, and those badges of fraud have not been rebutted to the satisfaction of the jury, the deed would bé vitiated and void so as to void the title as against the plaintiff in fi. fa. in this case. On the other hand, if the jury find there are no badges of fraud as call for rebuttal or explanation, or if they called for rebuttal or explanation and those badges of fraud have been rebutted to the satisfaction of the jury or satisfactorily explained to them, then such badges of fraud could not affect the validity of the deed in question.” Plaintiff excepts to this charge on the grounds: (1) that the court failed to define to the jury the meaning of the expression, “badges of fraud” or “badge of fraud;” and (2) because there was no evidence and pleading authorizing this extensive instruction on the question of badges of fraud and rebuttal or explanation thereof. Held, that this charge was not erroneous for any of the reasons assigned. Whether it was erroneous .on any other grounc is not now for decision by this court.
13. The plaintiff excepts to the charge as a whole, on the ground that it
■Judgment reversed.