88 Ga. 653 | Ga. | 1891
Judgment affirmed.
On December 28, 1885, Gramling, Spalding & Co. et al., creditors by open account of tbe firm of Turner & Hudson (composed of G. R. Turner and Allen Hudson), filed their bill against that firm and against W. II. Pool, E. L. Ergle, Samuel Turner and the sheriff, for injunction, receiver and other equitable relief. In this bill the complainants alleged that Turner & Hudson were insolvent traders, and attacked as fraudulent and void a deed from G. R. Turner to W. H. Pool, dated March 19, 1884, and recorded December 18, 1885, and a mortgage from Turner & Hudson to E. L. Ergle, dated December 18, 1885, and foreclosed six days afterwards. They also attacked as fraudulent and without consideration, a transfer from G. R. Turner to Samuel Turner of certain promissory notes which had been given by A. S. Gresham for land sold to him by G. R. Turner.
Pool and Samuel Turner made a motion in the nature of a general demurrer, to dismiss the bill so far as they were concerned; and the overruling of this motion forms one of the exceptions taken here. The case was referred to a master who reported, in brief, as follows:
1st. The deed from G. R. Turner to Pool was executed on March 19,1884, for the expressed consideration of $650, and Pool gave to Turner a bond to reconvey upon payment of that sum; but before the bill was filed the bond for title was surrendered to Pool and the note for $650 was surrendered to Turner. The firm of Turner & Hudson was not organized until several months after the date of the deed; and therefore it was not executed to hinder and delay their creditors. The complainants do not allege or prove a tender to Pool of the amount loaned or paid by him, nor do they offer to redeem the land; The deed was executed before the passage of the act of 1885 (A.cts 1884-5, p. 124), and so is not affected thereby; it passed the title to Pool, and cannot be subjected to the debts of complainants.
2d. The evidence shows that Samuel Turner loaned G. R. Turner $600, and took his note therefor on the
3d. Ergle’s mortgage was , executed on December 18, 1885; execution thereon was issued on December 23, 1885. The mortgage was for $735, with interest at 8 per cent., which principal and interest should be paid out of the money in the hands of the receiver, after payment of the amounts mentioned in the next item. The complainants offered no evidence to sustain their contention that this mortgage is without consideration, fraudulent and void. Ergle could enforce his lien at leisure. The complainants had no lien; none of them recovered judgments until January, 1886, and their bill was not filed until five days-after the foreclosure of the mortgage. Turner & Hudson had the right to prefer Ergle as a creditor, as provided in section 1953 of the code.
4th. The sum in the receiver’s hands is $898.95. After paying the complainants’ attorney a fee of $100 for bringing the fund into court, and after paying the fees of the master and the receiver, the balance should be applied to Ergle’s execution.
This report was filed on July 6, 1889. During the same (July) term, the complainants took the following exceptions:
(1) The master erred in not setting aside the deed to Pool. Under the law and evidence, it should have been
(2) The master erred in holding as he did as to the transfer to Samuel Turner of the Gresham notes. These notes should have been turned over to the receiver, and by him collected and applied to the debts of complainants; and the deed of G. P. Turner to Samuel Turner should have been set aside and made void as to complainants.
(3) The master erred in holding that the Ergle mortgage was good as against the claims of complainants. Under the evidence it is clearly shown that this mortgage was not a proper charge against Turner & Hudson, was only executed to defeat the debts of complainants, and was not a debt owing by Turner & Hudson at the time the note secured by the mortgage was given; that Turner & Hudson were insolvent at the time, and there was collusion between them and Ergle to defeat the
At the January term, 1891, the case was called for trial in the superior court, and the defendants moved to strike the above exceptions, on the ground that they do not plainly and distinctly state the finding or decision complained of and the error committed. The motion was overruled, and the defendants excepted. As one of the reasons why the court erred in this ruling, they say that the exceptions to the master’s report do not state whether the finding complained of was error of fact or of law.
Over objection of the defendants on the ground that it was then too late to amend, the court allowed the following amendment to the exceptions to the master’s report, and the defendants excepted : The master erred in not allowing the complainants, on their motion, to amend the prayers of their bill by asking that if it be found that Samuel Turner paid any sum of money for the land and notes of Gresham, the court decree that Samuel Turner be paid from the amount collected on the Gresham notes, and the balance be paid to the complainants.
The three exceptions to the master’s report above stated were sustained, the judge holding, in substance, that Ergle’s mortgage is void as a lien; that whatever ■amount might remain after paying Samuel Turner’s claim from the propjerty conveyed to him, should go into the fund to be distributed; and that Pool’s debt should be first paid from the property conveyed to him, and the balance remaining should go into the fund for
A. trial was then had before a jury, who under the charge of the court found a verdict sustaining the three exceptions to the master’s report, above set forth, and further found that the property described in the deed to Pool is assets in the hands of the receiver to be administered, subject to the lien of Pool on the property or the proceeds to the full amount of principal and interest due on his note against G. R. Turner; that Samuel Turner has a lien on the Gresham notes and the land for which they were given, to the exclusion of all other liens, for the amount due him, and when thte debt is paid, any excess is for distribution among the other creditors; and that the Ergle mortgage is void, and the proceeds of the sale of the mortgaged goods are assets in the receiver’s hauds to be administered, but Ergle is not to be prevented from proving his debt against G. R. Turner or Turner & Hudson, and from receiving his pro rata share of the fund for distribution, subject to the right of the other creditors to contest said amount as provided by law. The defendants moved for a new trial; the motion was overruled, and they excepted. Among the grounds of the motion are the following:
When the parties had announced ready and the jury
Error in refusing to charge “that the report of the auditor is prima facie correct and shall betaken as a correct finding on the facts of the case, and the burden of showing that it is erroneous is on the plaintiffs.”
Befusal to charge: “I further charge you that if the defendant George B. Turner made a deed to the property, as charged in the bill, to Pool as a security for a loan, then I charge you that the deed passes title to the land to Pool, and Turner had a bond made by Pool to execute titles on payment of the money, then Turner had under the law the right to redeem the land. And I further charge you that if Turner was unable to pay
Refusal to charge: “If the jury should believe from the evidence that Ergle’s mortgage was bona fide from fraud, his allowing the mortgagees to remain in possession of the goods mortgaged for three days after this debt became due, would not vitiate the mortgage. I charge you further that his mortgage covering a stock of goods greater than the amount of his claim would not alone vitiate the mortgage, but he could not hold more of the proceeds of the sale of the goods than are necessary to pay his debt, principal and interest. I further charge you, gentlemen of the jury, that if you believe from the evidence that Ergle’s mortgage is free from fraud, then it would be a first lien on the funds in the hands of the receiver,, to the exclusion of the other creditors, until his debt, principal and interest, is fully paid off.”
Error in charging: “ Then they say that the master’s report, in the third place, is wrong in his judgment upon the Ergle mortgage. They claim before you that this mortgage was made a few days before the absolute disruption of the firm; they say it was for a debt claimed by Ergle against Turner & Hudson, that had been stand
Error in charging; “Well now, I know it would be difficult for gentlemen of your occupation, and who have no knowledge of law, to form a verdict in this case to meet the exigencies of the case, provided you should find against these several transactions, that is to say, sustaining these exceptions; and as I have written out the form of a verdict which you should find if you come to the conclusion as I have mentioned, that is, if you determine for yourselves that this is the conclusion, you come to from the evidence and the law I have given you in charge, you should say, we the jury,” etc.