163 Ga. 430 | Ga. | 1926
Lead Opinion
This case has been here twice before. In Hinkle v. Hixon, 154 Ga. 193 (113 S. E. 805), this court affirmed the decision of the court below in overruling the demurrer to the petition. In Hixon v. Hinkle, 156 Ga. 341 (118 S. E. 874), where a full statement of the case is reported, this court reversed the judgment of the trial' court in awarding a nonsuit. In the present case it is insisted by the defendant in error that the evidence is substantially the same as it was in the case last cited. On the other hand, the plaintiff in error insists that the evidence is dif
Grounds 8, 9, and 10 of the amended motion for new trial complain of certain excerpts from the charge of the court, on the ground that the charge in each ground is not authorized by the evidence. From an examination of the evidence we are of the opinion that these grounds of the motion are without merit.
Ground 11 complains of the following charge of the court: “If you believe that contention [that Hinkle took the bonds with knowledge that they had been fraudulently procured from Hixon], or if you believe Hinkle did not have actual knowledge that they were fraudulently converted, if he had reasonable ground to suspect they had been fraudulently converted, then Hinkle would be under obligation to return the $10,000 worth of bonds to Hixon, because he could not get title to them in that way.” With reference to the conditions under which movant might be held chargeable with knowledge of the fraudulent procurement of the bonds by Herbert, Ryan, and others, from J. A. Hixon, the court charged the jury that movant would not be responsible for the return of the $10,000 worth of bonds to Hixon if he acquired them for value from the Mobile Tractor Co., and “provided Hinkle was without notice or reasonable ground to suspect the Mobile Tractor Co. had fraudulently come into possession of the bonds.” The court also charged the jury: “They could not pass good title to Hinkle if Hinkle knew they had been fraudulently converted, or if he had reasonable ground to believe they had been fraudulently converted; but if Hinkle did not know they had been fraudulently converted, or had reasonable ground to suspect it, then he would get good title.” The above excerpts from the charge of the court are not error for the alleged reason that they do not state correct principles of law. See Civil Code (1910), § 3224 (2).
Judgment affirmed on the main bill of exceptions; cross-bill dismissed.
Rehearing
A rehearing is asked in this case, for the alleged reason that this court has misconceived the record in treating Hinkle as the immediate transferee of a debtor whose property is transferred in fraud of creditors, rather than as the purchaser from or transferee of one who has fraudulently purchased the property of another. It is insisted that the court overlooked the following decisions which are controlling as authority, and which would require a different judgment from that rendered, viz.: Hinkle v. Smith, 133 Ga. 255 (65 S. E. 427), wherein it was decided that “It was error to charge that a subsequent purchaser of the property from such fraudulent grantee acquires no title as against such creditors, if he has grounds to reasonably suspect the fraud in the conveyance to his grantor.” Warren v. Citizens National Bank, 145 Ga. 503 (89 S. E. 520), in which the Hinkle case was cited and discussed and unanimously affirmed. It is also insisted that this court has misconceived and misconstrued Civil Code § 3224 (2), and has overlooked the construction placed thereon in the two eases herein above cited.
This court neither overlooked the section of the code cited, nor the decisions construing that section, but on the contrary had them in mind when the opinion was prepared; and this court had no intention to run counter to either the section of the code or the decisions of this court construing that section. In fact this court, under the record in this case and the evidence as disclosed by the' record, has not done so. It was alleged in the petition that in the alleged fraudulent transaction the company, Ryan, Herbert, and Kimbell, were the agents of the defendant, who received the ■fruits thereof; and that the defendant, Dr. Hinkle, had confederated and conspired with the company to defraud and deprive the plaintiff of his bonds. The plaintiff, Hixon, testified in part: “My bonds were registered bonds, and Dr. Hinkle came down there after I got this note from the bank. I not only notified the bank, but I caveated the bonds in Washington. The bank said it was going to forward them at the request of Dr. Hinkle, to have them exchanged for coupon bonds, and I caveated them by wire, so as to catch them when they got there. Soon after I got that letter from the bank Dr. Hinkle came to Americus, Georgia, in a little while to see me. He had a folder with a lot of papers in it, and