72 Ga. 331 | Ga. | 1884
By consent of counsel, this cause was heard and determined by the presiding judge, upon issues both of fact and law. The affidavit of illegality contains two grounds:
(1.) That defendant in execution did not owe the debt, and was never served with process in the original suit on which the judgment was rendered from which the execution issued, and had never waived such service.
(2.) That, after the j udgment was rendered, affiant was adjudged a bankrupt, and was thereafter discharged; that the judgment was a debt provable in bankruptcy, and was ex
1. Whether the judgment in bankruptcy,' discharging the affiant from the payment of debts existing previously to his adjudication, includes the claim in question, depends upon its being within the class excepted from the operation of the discharge by the act of congress. Section 5117 of the Revised Statutes of the United States provides “ that no debt created by fraud,” among others named, “ shall be discharged in bankruptcy.” The Supreme Court of the United States, in Neal vs. Clarke, 95 U. S., 704, decided that “ fraud,” as used in this section of the bankrupt act, meant positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud or fraud in law, which may exist without the imputation of bad faith or immorality; and that, where a party paid an executor for a portion of the assets of an estate which he purchased at a discount, but without any actual fraud, and where he was, with the executor, who failed to account therefor, made liable for a devastavit, and was subsequently discharged in bankruptcy, such discharge was a complete defence to an action against him for the devastavit. The same court, 99 U. S., pp. 1, 7, commenting upon and quoting from this case says, “ with this definition we are content. It is founded both on reason and authority. Clearly, it- does not include such fraud as the law implies from the purchase of property from a debtor with intent thereby to hinder and delay his creditors in the collection of their debts. But if it did, such a purchase does not create a debt from the purchaser to the creditors. As between the debtor and the purchaser the sale is good, but as between a creditor and the purchaser it is void. The purchaser does not subject himself to a liability to pay the creditors the value of what- he buys; all the risk he runs is that the sale may be avoided and the property reclaimed for their benefit. To come within the exception of the bank
The declaration sets forth the fact that the plaintiff purchased from the defendant and his partner, one Jack, a certain lot in the city of Atlanta for a price therein named, and took from them a conveyance therefor in the usual form, and containing the usual warranty of title { and it then goes on to charge upon them deceitful and fraudulent representations in relation to certain incumbrances, claims and liens which they, knew to exist upon the land, and which they concealed from plaintiff, and, by means of this fraud and concealment, sold to the plaintiff the premises. 'It specified an outstanding claim on the land in favor of one Stone, which they never extinguished, and which Stone never authorized them to dispose of; and that,Dby reason of these fraudulent representations, plaintiff had lost great gains and profits, which he otherwise would have made and derived from his purchase, and in addition was-put to a charge and expense of $425.00 in relieving the premises from the lien, claim and incumbrance of the said Stone, and he asked that process might issue calling defendants into court to answer him in an action on the case for deceit.
Our learned brother of the superior court was of opinion that the debt sued for in this action did not originate in fraud, but thought this a suit for a breach of war- -
If the declaration was defective in the respect pointed out, that would have been good ground for a demurrer, if it had been insisted upon at the trial; but such insuffi-. ciency would not, as we conceive, have been sufficient to
The fact that the verdict rendered in the case was for the aggregate amount of five hundred and eighty-three dollars and seventy cents, made up of so much principal and so much interest, each specially found thereby, does not authorize or justify the conclusion that the cause of action was different from what it purported to be, as set forth in the plaintiff's declaration. The verdict-will be, interpreted by the pleadings, and will not be set aside or disregarded on account of such an informality. If the declaration had contained two counts, one on the warranty of title and one for the deceit, and the party had gone to trial without an election, as was done in Dye vs. Wall ut sup., on which count he would rely, then the form of this verdict would have authorized, and perhaps have compelled, the conclusion that it was found upon the count for breach of the contract, but we have seen that this declaration contained only a single count, and that -was for the fraud and deceit of the defendant in making the sale and warranty, and to give the verdict effect, it must be considered as finding the defendant guilty of the wrong charged upon him. To avoid such questions in "future trials, we suggest that the jury should be instructed to find the defendant guilty, and to assess against him the amount of damages for which he is liable under the proof. These views lead us to the conclusion that the debt in question was created by the actual fraud of the defendant, and that it was not barred by his discharge in bankruptcy.
2. But conceding that the court erred in his ruling on this ground of the affidavit, still it is insisted that he should have found the issue made by the other ground in favor of the defendant. The return of the sheriff that he had. served the defendants, Jack, Bryson & Co.,
We do not pass upon another question argued in connection with this, viz.: that this return should have been traversed by the defendant, in order to entitle him to have this ground of his affidavit considered by the court, only because it is not essential to the determination of the question made. It is not apparent that any such question was made or passed on in the trial, and we think that the court was right in virtually finding against this ground of the motion.
3. The fact that the act of March 16th, 1869, pp. 133 and 134, bars the right as well as the remedy, does not deprive the court of jurisdiction to hear and determine causes within its provisions, as was insisted, on the argument here, by the able counsel for affiant. This is the very question that the act makes it incumbent upon the court to determine, when made by the pleading, and there is no reason why a party may not expressly, or by his failure to set up the defence, as was done in the present case, waive it. That the legislature never intended to prohibit a court
Judgment reversed.