9 S.E.2d 761 | Ga. | 1940
1. While the petition for cancellation of a deed failed to show that the defendant debtor was insolvent, and for this reason the deed, though voluntary, can not be set aside under the Code, § 28-201, paragraph 3, it may nevertheless be set aside under paragraph 2 of that section, under the allegation that it was made with the intention to hinder, delay, and defraud creditors.
2. The facts alleged showed no cause for enjoining the defendants from changing the status of the title to the property.
It appears from the allegations of the petition that on March 1, 1938, the defendants W. T. Keeter and O. F. Hester executed a promissory note in the principal sum of $350 to the plaintiff, the Bank of Ellijay. Hester made no appearance. The note was payable on June 1, 1938, and at the time of the filing of the petition it was due and remained unpaid. On April 21, 1938, Keeter executed a deed conveying certain described real estate to his daughter-in-law, Julia Keeter, and to his three grandchildren, Helen, Meredith, and S. L. Keeter, all of whom were named as defendants. The petition charges in substance that this constituted "all the property of the said W. T. Keeter, and . . the effect of the execution and delivery of said deed . . was to strip himself of everything which he possessed, except a small amount of personal property, which is entirely insufficient to pay said indebtedness;" that the consideration of $900 expressed in the deed "has never in fact been paid, and is not now and has never been owed by the grantees . . to the grantor," but that the deed was in fact a voluntary one, the consideration expressed being "falsely inserted therein for the purpose of more effectively carrying out the fraudulent intent and design of the . . parties thereto;" that the deed *526 was executed with the intent to hinder and delay his creditors including the plaintiff, and "for the purpose of preventing the judgment against him in favor of plaintiff upon said note from becoming a lien on said real estate;" and that "the intention of the said W. T. Keeter to hinder, delay, and defraud his creditors including your petitioner . . was well known" to the defendant grantees. In the latter connection it is alleged that the grantees "had a reasonable ground to suspect" the said intention and purpose of Keeter in the execution of the deed. It is further alleged that the property conveyed "is of the approximate value of $2000."
1. Since the uniform procedure act of 1887 a creditor may in one suit proceed for judgment on his debt and to set aside a fraudulent conveyance made by his debtor. DeLacy v. Hurst,
Unless the property of a person, whether real or personal, tangible *527
or intangible, leviable or non-leviable, is insufficient in value to discharge all his debts, he can in no proper sense be termed as insolvent. Cohen v. Parish,
It is also true, however, that under paragraph 2 of that section a deed may be set aside where it was made with the design and intention to hinder, delay, or defraud creditors, and such an intention may be found to have existed even though the grantor was and is not insolvent. Beasley v. Smith,
2. The petition sought also to enjoin the defendants from in anywise changing the status of the title to the property conveyed. The facts, as they appear from the petition, do not authorize this relief, and to this extent the demurrer should have been sustained. "Creditors who have not reduced their demands to judgment, and *529
who have no lien otherwise, can not, as a general rule, under the general law, enjoin their debtors from selling or disposing of their property." Kimbrell v. Walters,
Judgment affirmed in part and reversed in part. All theJustices concur. *530