179 Ga. 886 | Ga. | 1934
A. L. Mitchell filed a petition against John Wesley Weekes as administrator of the estate of.Dr. J. M. Tribble, and against his wife and daughters, Mrs. Bannie C. Tribble, Mrs. Miriam E. McGhee, and Mrs. J. S. Fleming, alleging as follows: On April 1, 1920, Dr. J. M. Tribble borrowed from the plaintiff five hundred dollars, and executed his note of that date, due January 1, 1921, with interest. The note has a credit of $200, leaving a balance due of $300, with interest at eight per cent, since January 1, 1931. Dr. Tribble died on or about May 20, 1932, leaving no will. On January 16, 1931, Dr. Tribble conveyed by deed to his wife and two daughters certain parcels of real estate belonging to him. On March 14, 1931, he conveyed by deed to E. W. Boswell a tract of land described. (Boswell is not a party defendant.) These acts of Dr. Tribble rendered him wholly insolvent, and the conveyances were made with intent to hinder, delay, and defraud petitioner, his creditor, whose note was at all times an outstanding debt against Dr. Tribble. All the deeds referred to were executed by
The court sustained a general demurrer and dismissed the action. To this ruling the plaintiff excepted.
The court did not err in sustaining the demurrer. It is true that it is provided in our Code that “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, shall be fraudulent in law against creditors and others, and as to them null and void.” § 3224, par. 2. But while it is alleged in the petition that the conveyances made by Dr. Tribble, were made with intent to delay and defraud creditors, it is not alleged that such intention was known to the parties taking the deeds. That the intention of the maker of a deed to hinder and defraud creditors was known to the party taking it is an essential allegation in a petition to cancel and set aside the conveyance. It is, however, further provided in the Code, “Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor insolvent at the time of such conveyance, shall be null and void as against creditors.” § 3224, par. 3. While it is alleged in the petition that the conveyances made by Dr. Tribble rendered him insolvent, the facts set forth do not sustain this contention. It is not alleged that Tribble owed other debts than that which it is alleged he owed to the plaintiff, some $300.00; and the facts pleaded show that subsequently to the execution of the conveyances to his wife and daughters he had other property which he conveyed later to another person who is not made a party to this
In view of what we-have ruled, 'and of the 'authorities upon which our conclusions -are- based, the court properly sustained the general demurrer to the'.petition: .....'" '■ -
-Judgment-'affirmed'.