107 Ga. 812 | Ga. | 1899
The record under which this case is to be determined is very meager and imperfect, and it may be that we are not in full possession of the facts as they transpired on the hearing. So far as we are able to ascertain, it appears that A. I. McMurria & Son was a mercantile firm engaged in business; that the firm failed; that A. I. McMurria conveyed to A. G. McMurria, trustee for the children of the grantor, certain real and personal property in the county of Baker; that such conveyance was voluntary; that subsequently Everett-Ridley-Ragan Company and other creditors filed a bill against A. I. Mc-Murria and G. C. McMurria, being the firm of A. I. McMurria & Son, and A. G. McMurria, trustee, attacking the deed made to the trustee as fraudulent and void against such creditors; that a decree was rendered in the superior court of Calhoun county, declaring that such deed was null and void, and decreeing and adjudging that said deed be delivered up to be cancelled; that a receiver was appointed and directed to take charge of such real and personal property and sell the same for the benefit of the creditors of A. I. McMurria & Son; that subsequently A. I. McMurria applied to the ordinary of Baker county to have a homestead and exemption set apart to him as the head of a family out of said property, and by the petition which is the foundation of the present case he sought to restrain the receiver from proceeding to sell said property and from turning him out of possession until the said application for homestead could be heard and determined by the ordinary. The receiver answered the petition, in the nature of a cross-bill, and, having set up the above facts, prayed that the ordinary be enjoined from further proceeding under the application for homestead. On the hearing, the judge of the superior court refused to enjoin the ordinary, and enjoined the receiver as prayed for in the petition. The receiver excepted, and we are to determine whether the court erred in granting the injunction.'' It is only
2. It may, however, be said that the provisions of section 2695 of the Civil Code, which is as follows: “The following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void, viz.: . . 2. Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description, had or made with intention to delay or defraud creditors, and such intention known to the party taking,” etc., contemplates and declares that such instruments shall be void as to other persons besides creditors, and that such words are broad enough to cover the parties to the instrument. A brief history of this section of the code will be sufficient to demonstrate that the parties to the instrument are not by law included in the use of the words. Prior to the adoption of the Code of 1863, the validity of conveyances made to defraud creditors was determined by the act of 13th Elizabeth. When that code was adopted, however, such conveyances were declared null and void simply as to creditors (§ 1954). The same restriction was made by section 1942 of the Code of 1868, and by section 1952 of the Code of 1873. While this provision of the Code of 1873 was in force, this court had under consideration the case of Westmoreland v. Powell, 59 Ga. 256. There, Powell sued Westmoreland to recover damages for a trespass. The suit resulted in a judgment in favor of Powell, and the execution issued thereon was levied on property conveyed by the defend
These being the provisions of our statute, and there being no rule of the common law which declared conveyances made to hinder or delay creditors void, it would seem scarcely necessary to cite authority to support the doctrine that such conveyances are not invalid between the parties to the instrument. Mr. Bump in his treatise on Fraudulent Conveyances (4th ed.), § 432, declares: “The statute was designed solely to protect the rights of creditors, and consequently it renders a fraudulent transfer void only as against them, and makes no provision whatever in regard to its effect between the parties.” In section 433 of the same work, the author declares that “A fraudulent transfer is good as against the grantor, his heirs, executors, administrators, parties claiming under him, and his agents, vendees, and grantees.” See also §449. Our own court has
Judgment reversed.