Jackson v. Kight & Sons, No. 4525

No. 4525 | Ga. | Jan 16, 1925

Beck, P. J.

A fi. fa. in favor of B. T. Kight & Sons against A. M. Jackson was levied upon land, and a claim thereto was interposed by A. M. Jackson, as agent of A. A. Jackson, W. H. Jackson, and as next friend of his minor children, I. J. Jackson and others. In aid of the levy the plaintiffs in fi. fa. filed an equitable petition, alleging that, subsequently to the date of the creation of the indebtedness that resulted in the judgment upon which the fi. fa. levied was based, A. M. Jackson, for the purpose of hindering, delaying, and defrauding the plaintiffs in fi. fa. and “other creditors,” and without consideration, executed a deed conveying to his minor children 132 acres of land, the property in controversy, for an ostensible consideration of $1700; that the deed purports to have been executed on July 6,1921, and recorded on December 28, 1921, when in fact it was executed on or about the 27th day of December, 1921, and was dated back as a part of the general. scheme to defraud; that the defendant was insolvent at the time of the conveyance; and that “the same Avas voluntary and without consideration, and madé for the purpose of hindering, delaying, and defrauding his [A. M. Jackson’s] creditors.” The prayers were that the deed referred to be delivered up and canceled as fraudulent, and that the property in question be sold for the benefit of plaintiffs and other creditors; and for general relief.

The petition was demurred to on the grounds, that it set forth no cause of action; that no equitable cause of action was shown; that it was vague and indefinite; that it failed to name the other creditors for whom it was filed; and that it failed to charge that the claimants knew or had knowledge that the deed mentioned was made by the debtor with intent to defraud, hinder, and delay cred-: itors, or that they had any knowledge of a fraudulent intent on his part. The demurrer was overruled. To this judgment the de- • fendants filed and had approved their bill of exceptions pendente lite, and assigned error thereon in their final bill of exceptions. The case proceeded to trial, and a verdict finding the land subject Avas rendered by the jury trying the case. Claimants made a motion for a new trial, which Avas overruled, and they excepted.

The court did not err in overruling the demurrer. It was a general demurrer going to, the entire petition, the prayer being that the demurrer be sustained and the petition dismissed. A special demurrer to the paragraphs in the petition alleging that the deed was executed to defraud plaintiffs in fi. fa., “and other creditors,” and to the prajrer that the property described be sold for the benefit of plaintiffs and “other creditors,” would have required an amendment setting forth the names of the other creditors, or showing some excuse for a failure to name the other creditors. But the failure to set forth the names of the “other creditors” and the amount of their claims was not ground for dismissing the petition. Besides, if the reference in the petition to “other creditors” had been stricken, the issues in the case would have been the same.

In the petition the plaintiffs allege that the defendant was insolvent at the time of the execution of the deed; that the same Avas voluntary and without consideration, and made for the purpose of defrauding creditors. This paragraph Avas not demurrable on the ground that it failed to charge that the grantees in the deed had knowledge that the instrument was executed with the intent to defraud creditors. If the deed was voluntary and without consideration and made by an insolvent debtor, it was void as to his creditors whether the grantees in the deed had knowledge of the intent with which the paper was executed or not.

Error is assigned upon the following charge of the court: “I charge you that the following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void: for instance, first, every assignment or transfer by a debtor, insolvent at the time, of real or personal property, or choses in action of any description, to any person, either in trust or for the benefit of, or in behalf of, creditors, where any trust or benefit is reserved to the assignor or any person for him.” This charge is excepted to on the ground that it was “not pertinent to any of the issues involved in the case, was calculated to mislead and confuse the jury, and was therefore prejudicial to the cause of the movants.” The charge is open to the criticism that it is not pertinent to the issues made; but the court was charging generally on the subject of acts void as against creditors. Our statute declaring such acts to be void is to be found in section 3224 of the Civil Code. The charge complained of recites the statute contained in subsection 1 of the section last referred to, which was foreign to any issue made by the pleadings or by the evidence; but it would seem that under the facts of the case it could not have been misleading or confusing. There was no allegation in the petition that the creditor had conveyed or sought to convey to any person any of his property, real or personal, in trust or for the benefit of himself, by any instrument containing a reservation of any benefit to the grantor or assignor; and the jury as intelligent men were necessarily aware of this.

Error is also assigned upon the following charge of the court: “I charge you that if you believe from the evidence in this ease that this was a voluntary conveyance on the part of Mr. Jackson, and that it was a fraud, and that it was made with the intention of defeating his creditors, then it would be your duty to find in favor of the plaintiff and against the deed.” This charge was not error as against the claimants. The deed in question was executed after the creation of the debt that resulted in the judgment upon which the fi. fa. levied was based, and after suit upon that indebtedness was commenced. A - voluntary conveyance executed by the defendant in fi. fa. to his children was void as against that debt, because, under the uncontradicted evidence, the defendant was insolvent, and our statute provides that “every voluntary deed or conveyance, not for a valuable consideration, made by a debtor insolvent at'the time of such conveyance,” is void as against creditors ; and to have such a deed declared void, it was not necessary to show by evidence that it was made for the purpose of hindering, delaying, or defeating creditors. And there was some evidence authorizing the charge upon the subject of a voluntary conveyance.

Judgment affirmed.

All the Justices concur.