185 Ga. 653 | Ga. | 1938
On January 26, 1932, the State Banking Company filed suit against T. C. Miller on two notes dated March 14, 1930, one for $2949.06, another for $64.70.- On May 18, 1932, judgment thereon was obtained, on which judgment execution is
1. A plaintiff in a common-law fi. fa. proves a prima facie case by proof of title in the defendant in fi. fa. before levy, before judgment, after judgment, or at time of levy. Morgan v. Simms, 26 Ga. 283; Coleman & Burden Co. v. Rice, 105 Ga. 163 (31 S. E. 424); Stephens v. Southern Cotton-Oil Co., 147 Ga. 410 (94 S. E. 245).
2. In the trial of a statutory claim to land, interposed under the Code, § 39-801, to resist the levy of a fi. fa., it is not necessary, in order to show fraud in the deed to the claimant, to have special pleading for that purpose. Simmons v. Realty Investment Co., 160 Ga. 99 (127 S. E. 279), and cit.
3. Whenever a transaction is between husband and wife, and the creditors of the husband attack it for fraud, if the wife claim the property purchased or received from her husband, the onus is on her to make a fair showing about the whole transaction. Code, § 53-505; Richardson v. Subers, 82 Ga. 427 (9 S. E. 172); Strickland v. Jones, 131 Ga. 409 (62 S. E. 322); Gill v. Willingham, 156 Ga. 728 (4) (120 S. E. 108). The mere introduction of a conveyance from the husband to the wife would not shift the burden from her to the plaintiff, the burden being on her to show that the whole transaction was fair. Simmons v. Realty Investment Co., supra. If the deed be to the wife for life or widowhood, with remainder to the children, and the wife be dead, the onus is on the children to the same extent.
4. Transactions between husband and wife and near relatives, to the prejudice of creditors, are to be closely scanned and their bona fides clearly established. Booher v. Worrill, 57 Ga. 235; Smith v. Welborn, 75 Ga. 799; Gray v. Collins, 139 Ga. 776, 780 (78 S. E. 127).
5. Possession retained by the vendor after an absolute sale of real property is prima facie evidence of fraud, which may be explained. Stephens v. Southern Cotton-Oil Co., supra. The sufficiency of the explanation of such possession is for the jury’s determination. Kelly v. Stovall, 138 Ga. 186 (75 S. E. 6).
6. “Where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evi
7. Conveyances may be fraudulent as to subsequent creditors as well as existing creditors, if made with the intent to defraud. First National Bank of Cartersville v. Bayless, 96 Ga. 684 (23 S. E. 851); Lane v. Newton, 140 Ga. 415 (2) (78 S. E. 1082); Almand v. Thomas, 148 Ga. 369 (6) (96 S. E. 962); Cohen v. George, 149 Ga. 701 (101 S. E. 803); Duncan v. Freeman, 152 Ga. 332, 334 (110 S. E. 5); Sullivan v. Ginsberg, 180 Ga. 840, 845 (181 S. E. 163).
8. Upon application of the foregoing rulings to the evidence, the judge erred in directing a verdict in favor of the claimants as to the 105 acres of land levied on.
9. While the omission of the claimant to move to dismiss the levy as to the town lots on the conclusion of the plaintiff’s evidence, and the introducing of evidence by the claimants in answer to that of the plaintiff, are, together or separately, no admission that the plaintiff’s evidence is prima facie sufficient as to the lots (Smith v. Hare, 58 Ga. 446 (3)), and the direction of the verdict finding the town lots not subject may have been proper, since the case goes back for another trial, and since it does not appear in the instant case whether the plaintiff or the claimants opened and concluded the argument, under the circumstances we leave open the question whether the town lots are subject to the levy.
10. A deed reciting, “In witness whereof the said party of the first part has hereunto set his hand and affixed his seal, and delivered these presents, the day and year above written,” and conveying a life-estate and remainder, which was found in the safe of the grantor in the “little box” of the grantee of the life interest, the grantor and such grantee being husband and wife, is admissible in evidence without further proof of delivery. See Hill v. Merritt, 146 Ga. 307 (2) (91 S. E. 204).
12. For the reasons above stated, the judge erred in overruling the plaintiff’s motion for new trial. Grounds of the motion not herein dealt with are without merit.
Judgment reversed.