132 Ga. 786 | Ga. | 1909
(After stating the foregoing facts.)
This was not a proceeding to subject property to the payment
If the action should be treated as sounding in tort, it was still fatally defective. There was no allegation of any direct representation by the defendant to the plaintiff. It was alleged that the original debtor executed a deed to his mill property to the present defendant, which was dated April 4, but was actually executed “after the 15th day of August, 1905.” The date of the sale of one car-load of coal by the plaintiff to his debtor was alleged to have been “on the — -day of August, 1905,” and the delivery on September 1, following. The other car-load was alleged to have been sold “a few days thereafter,” and the delivery made on September 9. Thus it does not appear whether the plaintiff was a creditor
In Matthews v. Pass, 14 Ga. 141, it was held, that, where a person aids another to remove himself and his property out of the State, an action on the case does not' lie against that pérson at the suit of a creditor. That case is not identical with this, but. much of the reasoning of Benning, J., is in point. Among other •things he said: “Cases like this have been occurring ever since the birth of credit. Has there ever been a time when men were not aiding debtors to evade payment of their debts? Yet there is not to be found an instance of an action on the case against such men, by the creditors.” In Western Railroad v. Thomas & Prescott, 60 Ga. 313 (27 Am. R. 411), it was held (Jackson, J., dubitante), that where the agent of a railroad company obstructed an officer in levying an attachment upon goods loaded on one of the company’s trains, and they were removed out of the State by the running of the train, this did not furnish a cause of action against the company, at the instance of the plaintiff in attachment. In Lamb v. Stone, 11 Pick. 527, it was held that an action on the
In the well-considered case of Moody v. Burton, 27 Me. 427 (46 Am. D. 612), it was held, that, where a fraudulent conveyance of property was made for the purpose and with the intent to defraud creditors, an action on the case to recover damages ■ on account of such fraud, brought by one of the creditors against the parties to the fraudulent conveyance, could not be sustained. The reasoning is so clearly expressed that we will quote it somewhat at length. In the opinion Shepley, J., said: “Creditors may con-, sider such conveyances to be unlawful and void, and may cause the property to be applied to the payment of their debts by the use of any of the different legal and equitable processes applicable to their case and afforded by the law for that purpose. . . If such an action as this may be maintained against a fraudulent vendee, it may, upon like principles, against the fraudulent vendor or against any particeps fraudis. . . The debt of the creditor will not be satisfied pro tanto by a recovery and collection of damages from a vendee or a particeps fraudis. A debt due from one person can not be satisfied by the recovery of damages from another person, unconnected with and a stranger to it, without some' statute provision. The creditor would recover damages in satisfaction for an injury suffered, not on account of a debt due and. in satisfaction of it. How are the damages, which a creditor may thus recover, to be proved and estimated? The plaintiff had obtained no lien on the property conveyed by attachment, judgment,, or in any other manner. Had no special property in or claim to it. The only proof of loss or injury, which he could make, would be, that his debtor had fraudulently conveyed his property without having received any value for it, and with the intent ten
The present case also is not to be confused with those where, by means of fraud or conspiracy, a specific lien on property has been displaced or lost. Nor are there such allegations as would support an action of deceit. The petition does not appear to have proceeded on the theory of an action of that character, and it does not sufficiently allege any false affirmation to the plaintiff, with intent to defraud him, made by the defendant or with his authority, and damages therefrom. It does not come within such rulings as that in Pasley v. Freeman, 3 T. R. 51, Smith’s L. C. (9th ed.) 1301. Whether, therefore, the suit be treated as one sounding ex contractu or ex delicto, it was properly dismissed.
Judgm.ent afft/rmed.