48 S.E.2d 89 | Ga. | 1948
1. On exceptions to the overruling of a demurrer to an equitable petition, interlocutory exceptions such as made in this case to rulings made in the progress of the case prior to the demurrer can not be considered.
2. Even though a petition for extraordinary equitable relief is not properly verified as required by the Code, § 81-110, this does not as a matter of law demand its dismissal on general demurrer.
3. Where an insolvent debtor, for the purpose of hindering, delaying, and defrauding his creditors, uses his assets in the purchase of property, taking title in the name of a third person, who has full knowledge of the purpose of the transaction, such a transaction is fraudulent as to existing creditors; and, in a court of equity with the parties to the transaction made parties defendant, the defrauded creditor may have the transaction set aside.
A receiver was appointed. Subsequently, on October 23, 1947, the receiver filed a report and request for instructions, in which he alleged that, upon information and belief, certain properties had been transferred by the defendant to Mrs. Hattie Harper for the purpose of hindering, delaying, and defrauding creditors. On January 20, 1948, the plaintiff filed an amendment to the petition, seeking to have Mrs. Hattie Harper made a party defendant. The amendment alleged in substance: that on November 1, 1946, the defendant purchased a described house and lot for $8500, on which he paid $4000 cash and assumed a mortgage of $5000; that immediately upon the purchase of this property he caused it to be conveyed to Mrs. Hattie Harper, who is now residing on the property; that from time to time thereafter, from January 1 to October 1, 1947, the defendant expended more than $2000 for furniture and equipment which was placed on this property on behalf of Mrs. Harper; that in September, 1947, *610 the defendant purchased a 1946 four-door Dodge sedan, motor No. D-24-121451; that immediately upon purchasing the car, the defendant delivered it to Mrs. Harper for her personal use; that the defendant conveyed, transferred, assigned, and delivered the described property to Mrs. Harper while he was insolvent and for the purpose of hindering, delaying, and defrauding creditors, which acts were done with the knowledge and connivance of Mrs. Harper; that at the time the transfers and deliveries were made, the plaintiff was a creditor of the defendant Carr; that the defendant Carr owes debts and claims in excess of $25,000 and has assets, including the property transferred to Mrs. Harper, which will not exceed $17,000; that, unless Mrs. Harper is enjoined from disposing of the described property, she will sell it and convert the funds to her own use. The plaintiff prayed, among other things, that Mrs. Hattie Harper be made a party defendant, and for general relief.
Mrs. Hattie Harper filed a general demurrer to the amendment and to the petition as amended. The trial court overruled the general demurrer, and to this judgment the plaintiff in error, Mrs. Hattie Harper, excepted, also assigning error on interlocutory decrees previously rendered by the court.
1. No exception was taken to the order appointing a receiver. Two of the assignments of error relate to interlocutory orders passed prior to the overruling of the general demurrer filed by the plaintiff in error. "Interlocutory exceptions can not be considered in this court until a final disposition of the case in the court below. Therefore, on exceptions to the overruling of a demurrer to a bill in equity, interlocutory exceptions to rulings made in the progress of the case prior to the demurrer can not be considered." Mechanics' Traders' Bank of Rome v. Harrison,
2. Even though a petition for extraordinary equitable relief is not properly verified as required by the Code, § 81-110, this *611
does not as a matter of law demand its dismissal on general demurrer. Williams v. Porter,
3. "Creditors may attack as fraudulent a judgment or conveyance, or any other arrangement interfering with their rights, either at law or in equity." Code, § 28-104. "Since the uniform procedure act of 1887 a creditor may in one suit proceed for a judgment on his debt and to set aside a fraudulent conveyance made by his debtor." Keeter v. Bank of Ellijay,
If an insolvent debtor, for the purpose of hindering, delaying, and defrauding his creditors, uses his assets in the purchase of property, taking title in the name of a third person, who has full knowledge of the purpose of the transaction, such a transaction is fraudulent as to existing creditors. In the instant case, the petition, as amended, alleges such a state of facts; and, on general demurrer, these facts must be accepted as true. In these circumstances, a defrauded creditor may, in a court of equity, have the fraudulent transaction set aside; and, for this purpose, the third party to the transaction would be a proper and necessary party. The amendment to the petition, which sought to *612 make Mrs. Hattie Harper a party defendant, was germane to the original cause of action and conducive to the grant of complete relief with respect to the same matter, and consequently it was not objectionable as adding a new and distinct cause of action.
Judgment affirmed. All the Justices concur. Bell, J., concursspecially.