80 Ga. 249 | Ga. | 1887
The complainants, Woodmansee et al., filed their bill in Fulton superior court against the defendants, Robinson et al., alleging that Robinson was indebted to them in a large sum of money, and that he had made a fraudulent sale to his brother, R. Y. Robinson, and had given fraudulent mortgages to Conley et al. Upon the trial of the case, the jury returned a verdict in favor of the complainants, and the defendants moved for a new trial upon the grounds set out in the motion, which was overruled by the court below, and the defendants excepted, and assign error upon the refusal of the judge to grant a new trial.
Complaint is made by the plaintiffs in error of this part of the charge, because the court instructed the jury as a matter of law, that, “ if they believed that Robinson made these mortgages, and there was an understanding with the persons receiving them, that they should be kept off the record for the purpose of protecting his financial credit, then the mortgages would be fraudulent as to all persons extending credit to Robinson after this date.” We think this part of the charge erroneous. Under the facts of the case, it was not, as a matter of law, fraudulent to agree not to record the mortgages. It is not necessarily a fraud to agree not to record a mortgage. The agreement or understanding may have been made with the most honest intention. It is for the jury to say what the intention was; whether the mortgages were given by the debtor for the purpose of hindering, delaying or defrauding his creditors. If they should find that that was the intention of the debtor,
“ An agreement to conceal the fact of a purchase is not per se fraudulent, but is merely matter of evidence in favor of avoiding the sale, which, although perhaps very strong, is still capable of explanation.” Wait on Fraudulent Conveyances, p. 323, and authorities cited. See also Bump on Fraudulent Conveyances, p. 82.
Judgment reversed.