140 Ga. 415 | Ga. | 1913
(After stating the foregoing facts.)
1. Where creditors seek by equitable petition to cancel a deed made by a husband to his wife, it is necessary to make the grantor a party defendant. Palmer v. Inman, 122 Ga. 226 (50 S. E. 86) ; Paulk v. Ensign-Oskamp Co., 123 Ga. 467-469 (51 S. E. 344). If he is dead, his legal representative must be made a party, or a sufficient reason shown to excuse the failure to do so. In this case the plaintiffs brought their petition against the wife of the decedent and three of his sons, who were alleged to be adults, but it does not
2. One ground of the demurrer attacked the allegations of the plaintiffs that they were subrogated to the right of Daniel Sons & Palmer Company to attack the deed by Lane to his wife, because it was a voluntary deed made to hinder, delay, and defraud that company, and because when such company was pressing for the collection of the indebtedness to it, and had brought suit thereon, the plaintiffs were induced, on representations of Lane, to advance
The difference between claiming subrogation to a contract oí to a lien, and claiming the right to attack a voluntary deed as fraudulent, if'money borrowed from the attacking party was used to pay off antecedent debts, and without knowledge on his part of the making of the conveyance, is clear. The decisions relied on by counsel for the plaintiffs in error (McCowan v. Brooks, 113 Ga. 532 (39 S. E. 115), Sackett v. Stone, 115 Ga. 466 (41 S. E. 564), and Ragan v. Standard Scale Co., 128 Ga. 544, 546 (58 S. E. 31)) were in cases where an effort was made by one who advanced money to pay off and discharge a lien or security to be subrogated to the rights of the holder thereof. What we are now discussing is the making by an insolvent creditor of a voluntary conveyance,- and then borrowing money from another and discharging prior debts, as creating substantially a continuing indebtedness rather than a cessation of debt and the creating of a distinct subsequent debt. It seems to the writer that the decision in the ease of First National Bank of Gartersville, above cited, does not go as far as the authorities on which it relies, and that it does not clearly distinguish between the status of independent subsequent creditors of an insolvent who makes a voluntary conveyance and that of a subsequent creditor who lends money to pay prior debts which are thus discharged. That decision requires an actual fraudulent intent by the grantor in such a deed toward 'a subsequent creditor in order to obtain subrogation to the position of prior creditors paid with the money furnished by the subsequent creditor, although the prior creditor could attack a voluntary conveyance by an insolvent without showing actual fraudulent intent. Eeally the entire mat-tor of attacking such conveyances rests on the ground of fraud. In
If a trap were set by a husband and wife for the purpose of defrauding a subsequent creditor and he were defrauded, it would not seem that he needed any subrogation in order to attack the fraud. If only the intent of the husband is deemed necessary, this would make'the subrogation of a subsequent creditor depend on an intent of one party to a voluntary conveyance. See, in this connection, note to Hagerman v. Buchanan, 14 Am. St. R. 732, 739, 745 (45 N. J. Eq. 292, 17 Atl. 946). But, under our statute, the decision above cited stands as the law unless modified on formal review.
There is also a statement, in one of the grounds of the motion for a new trial, that the question of subrogation was abandoned, though much of the allegation of fraud was on that subject. The charge of the court should have distinguished between prior and subsequent creditors.
If the reconveyance from Mrs. Lane to her husband was a deed of gift, and it was delivered, then the plaintiffs acquired a good title, and the deed from Lane to his wife does not need to be canceled. Perhaps there may be a decree declaring the fact and requiring a record. Wdiat is said in Martin v. White, 115 Ga. 866 (42 S. E. 279), covers the question as to the effect of recording a dead which is in fact voluntary, relatively to a subsequent purehasar for value without notice.
Judgment reversed.