185 Ga. 198 | Ga. | 1937
Lead Opinion
LeKoy W. Childs executed to New England Mutual Life Insurance Company, on November 15, 1929, a deed conveying described realty hereinafter referred to as Peachtree Street property in the City of Atlanta, to secure a promissory note for $4=5,000 principal and certain interest notes. Childs failed to pay an instalment of principal that fell due on December 1, 1932; and failing, also to pay an interest note falling due June 1, 1933, the company in pursuance of an accelerating clause in the contract, immediately declared the entire debt due,
The rulings announced in the first and second headnotes do not require elaboration.
The third special ground of the motion for a new trial complains of the ruling rejecting testimony of Childs on cross-examination. He had testified that in his opinion the property sold at sheriff’s sale was at the time of such sale worth the amount of the fi. fa. With reference to this the witness was asked if a number of times since the sale the plaintiff had not offered to reconvey the property for $25,000, to which the witness answered “No.” Following this was a long series of separate questions and answers which in his ruling the judge grouped as relating to (1) what plaintiff offered; (2) whether witness would buy on terms; (3) whether he would buy for cash or not, and ruled them out collectively and separately. None of them mentioned values or offers at the time of sale, but subsequently and at the time of trial. The assignment of error is that the' testimony was relevant and admissible on cross-examination to test the value of the witness’s opinion, and to aid the jury in determining what weight and credit should be given the opinion. The only issue being tried was as to cancellation of the deed executed January 30, 1932, executed by Childs to his wife. The only alleged grounds of cancellation were (1) that the deed was voluntary and without consideration, made by Childs when he was insolvent; (2) that the
The fourth ground complains of an instruction to the jury that the value of the Peachtree Street property (sold at sheriff’s sale in January, 1934) is material only as it “may illustrate the question of the solvency or insolvency of” the defendant Childs “on January 30, 1932,” the date of the conveyance to his wife. The charge was not erroneous on the grounds, as contended: (a) That “under the law . . a debtor who makes a voluntary conveyance is deemed to be insolvent if at the time of said voluntary conveyance he does not retain property that is accessible to his creditors and ample to pay his existing debts; and it appearing that the Peachtree property referred to in said charge was not sufficient to pay the indebtedness . . to movant, the value of that property on the date of . . Childs’ conveyance to his wife was not material or relevant upon any issue in the ease.” (b) One issue was whether the deed of January 30, 1932, was a voluntary conveyance that rendered Childs insolvent. At that time the Peach-tree property was encumbered by security deed, and subsequently was brought to sale by the sheriff and brought less than the amount of the fi. fa., which conclusively established that the property was worth less at the time of the voluntary conveyance than the indebtedness to the company; and consequently the value of the property on the date of the alleged voluntary deed could not be considered as illustrative of the solvency of Childs when the deed was made, (c) That by such charge the jury was “misled . . into believing that if the Peachtree property was worth, on January 30, 1932, the amount of . . indebtedness to movant, then . . Childs did not render himself insolvent by the conveyances he made to his wife on that date.” (d) That at the time of such conveyance on January 30, 1932, the secured debt was not due, and movant could not proceed to subject to payment of his debt other property which Childs retained. Consequently the test of whether Childs rendered himself insolvent depended on whether or not he retained property accessible to his existing creditors, not at the time of the alleged conveyance, but at the time of the enforce
Ground 5 complains of the charge to the jury: “You must decide whether or not . . Childs was insolvent on January 30, 1932. If he had sufficient property or money on that date, taken at a fair valuation on that date, to pay all his obligations, then he was solvent; if he did not, then he was insolvent. One making a conveyance of property will be insolvent if after the conveyance he does not have or retain sufficient property to pay his then existing debts.” This charge was not erroneous, as contended, on the grounds: (a) “Said charge is conflicting, confusing, and misleading. In one sentence the jury is told that if Childs had sufficient property or money, taken at a fair valuation on the date of the conveyance, to pay all his obligations, then he was solvent; and in the next sentence it is told that he will be insolvent if after the conveyance he does not have or retain sufficient property to pay his then existing debts.” (b) “In order for the debtor to be deemed solvent at the time of the alleged voluntary conveyance, the property retained must be sufficient at the time of the maturity and enforcement of his existing debts to pay those debts, and it is not sufficient that the property retained had a value on the date of the voluntary conveyance sufficient to pay the existing debts, where, as in this case, when the indebtedness matured and was sought to be enforced the retained property was insufficient.” (c) “Said charge, and particularly the last sentence thereof, was not supported by the evidence, and was indeed contrary to the evidence, it appearing from the uncontradicted evidence that on the date of’ the conveyance . . Childs stripped himself of all his property except the Peachtree property that was encumbered by the lien to secure, and the sale of that property at sheriff’s sale under movant’s fi. fa. conclusively established that that property was insufficient to pay that indebtedness, it having brought at the sale less than the amount of the fi. fa.” (d) “In order for a voluntary conveyance to be good as against existing creditors, the property retained by the debtor must not only be sufficient in value at the
Ground 9 complains of the charge: “I have instructed you also that if a debtor retains sufficient money, property, or effects to pay all obligations due at the time of any conveyance of the property, that then such grantor or. person conveying would not be insolvent.” This was not erroneous, as contended, on the grounds: (a) “For all the reasons set forth in paragraph 5 hereof, to which reference is hereby made as a part hereof.” (b) “Said charge does not state the correct rule of law, which is that in order for a debtor not to be deemed insolvent at the time .of making a voluntary conveyance of his property, he must retain property accessible to his creditors and subject to levy by execution, ample to pay all obligations existing at the time of such conveyance, whether they be due at the time of such conveyance or not.” (e) “Because the evidence showed that . . Childs did not, at the time of the conveyance involved in this case, retain any money or effects accessible to creditors; and said charge was therefore not authorized by the evidence.” (d) “The court charged the jury . . that in order for the obligations to be counted in determining whether sufficient assets were retained to pay them, they must be due at the time of the conveyance. Such an instruction was particularly prejudicial to movant, because the indebtedness to it had not matured at the time of the conveyance under attack.”
Ground 6 complains of the charge: “That a debtor and husband may prefer one creditor, including his wife, over another, if in good faith and free from fraud of other creditors, and may convey property to such creditor, his wife, in settlement of a preexisting debt, and the conveyance would be valid, unless it was a voluntary conveyance and the husband was insolvent at the time, or unless the intention of both was to hinder, delay, and defraud
Ground 8 complains of the following instruction: “In this connection I charge you that fraud, being subtle in its nature, slight circumstances in family transactions may be sufficient to establish its existence; but even though slight circumstances may be sufficient to establish it, nevertheless you must be satisfied that it has been established by a preponderance of the evidence.” Movant requested the court to charge that portion of the above quotation reading as follows: “In this connection I charge you that fraud, being subtle in its nature, slight circumstances in family transactions may be sufficient to establish its existence.” The court, however, added the remaining portion of said charge, and movant contends that in charging, “but even though slight circumstances may be sufficient to establish it, nevertheless you must be satisfied that it has been established by a preponderance of the evidence,” the court committed error. The charge was not erroneous, as contended, on the grounds: (a) “Said charge cast upon movant the burden of establishing fraud by a preponderance of the evidence; whereas in this case the burden rested upon the defendants to establish by a preponderance of the evidence that there was no fraud in the transaction.” (b) “Said charge was by the addition above referred to made confusing and misleading, and tended to lead the jury to believe that although slight circumstances might be sufficient to establish the existence of fraud, nevertheless, before they could apply that rule, they must find that movant, by a preponderance of the evidence, had established the existence of fraud in the transaction.” (c) “The . . addition made by the court to the charge requested by movant destroyed the force and effect of that portion of the charge that had been requested by movant, and movant was entitled to have its request given to the jury without any such addition or qualification.” (d) “Said portion of the charge added by the court led, or could have misled, the jury into believing that the court was withdrawing the previous instruction that in a transaction between husband and wife the burden is upon the husband and wife to show that the transaction was fair.”
Ground 13 complains of the refusal of a request to give the following in charge to the jury. “Now, you look to the evidence to ascertain the truth of those contentions. If you find that . . Childs was indebted to Mrs. Childs, but that by reason of his buying furniture, which she claims as hers by reason of its having been purchased with her funds, and that he with her knowledge and consent, express or implied, invested on the stock exchange in securities, upon which there was a loss; or with her consent, express or implied, invested in any other property upon which there was a loss, and that he turned over or transferred to her, at or about the time of the conveyance of the home place, other property, including the Goldburg and Adair notes and stocks and bonds in the safety-deposit box, and at or about that time furnished her funds with which to buy the land and construct a house at Highlands, North Carolina, and that those items aggregate the amount of any indebtedness to her, if you find that any such indebtedness existed, then I charge you that you would be authorized to find that there was no consideration, or no sufficient consideration, for the conveyance of the home place to Mrs. Childs, and you should find that that deed was void. You should also find
The evidence was sufficient to support the verdict. The court did not err in refusing a new trial.
Judgment affirmed.
Rehearing
ON MOTION POR REHEARING.
I am compelled to dissent from the order denying the motion for a rehearing. After further examination of the record, I am convinced not only that the charges dealt with in divisions 7 and 9 of the opinion were erroneous but that the errors were of such materiality as to require a reversal. The motion for rehearing should be granted, and the judgment reversed. See Evans v. Coleman, 101 Ga. 152 (28 S. E. 645); Nicol v. Crittenden, 55 Ga. 497 (7); Monroe Mercantile Co. v. Arnold, 108 Ga. 449, supra; Shapiro v. Wilgus, 287 U. S. 348, 354 (53 Sup. Ct. 142, 77 L. ed. 355, 85 A. L. R. 128).