Von Kamp v. GaryVon Kamp v. Gary
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- Before:
- Bell
The petition of a wife suing for alimony and for cancellation of a deed alleged to have been made by her husband with the intention on his part, known to the grantees, to delay and defraud the plaintiff with respect to her claim for alimony, stated a cause of action, and it was error to sustain a general demurrer filed by such grantees and dismiss the petition as to them.
(a) The allegations respecting valuable properties retained by the husband after executing the questioned conveyance did not conclusively and as a matter of law rebut the positive allegation that he did execute such conveyance with intent to delay and defraud the plaintiff in relation to her claim for alimony.
(b) Although, under the allegations of the petition, the deed appears to be valid as between the grantor and grantees, this fact would not prevent its cancellation in so far as the rights of the plaintiff are concerned, the petition being otherwise sufficient as a pleading to authorize such relief.
On August 17, 1948, Ada S. von Kamp filed a suit in the Superior Court of Richmond County against her husband, A. B. von Kamp, and other persons, namely, Irene von Kamp Gary, Ada Claire Higgins, and Georgia Railroad Bank & Trust Company, seeking a judgment for alimony against her husband and equitable relief as against him and the other defendants named. The court sustained a general demurrer filed by Irene von Kamp Gary and Ada Claire Higgins, dismissing the petition as to them, and to this judgment the plaintiff excepted. The material allegations of the petition were substantially as follows:
The plaintiff and the defendant, A. B. von Kamp, are husband and wife, having been married November 11, 1891. The plaintiff separated from the defendant, A. B. von Kamp, on or about
Under date of July 12, 1948, shortly after said separation, the defendant, A. B. von Kamp, made a voluntary conveyance, by deed of gift to the defendants, Irene von Kamp Gary and Ada Claire Higgins, of the real estate and improvements thereon located at 856-58 Broad Street, Augusta, Georgia, which produce a rental of approximately $10,000 per year, said real estate being of the present value of $250,000 or $300,000, and comprising the major asset of the defendant‘s estate.
Said voluntary conveyance was an effort by the defendant, A. B. von Kamp, to place said property beyond the reach of the plaintiff and to divest himself of the ownership thereof with the purpose and intent to hinder, delay, and defeat the plaintiff in her claim for temporary and permanent alimony. Irene von Kamp Gary and Ada Claire Higgins, the grantees in said deed,
On or about the same day that said A. B. von Kamp made said voluntary conveyance, he also withdrew from the Georgia Railroad Bank & Trust Company virtually all cash money standing on deposit in his name, consisting of a sum in excess of $10,000; and while living separate and apart from the plaintiff gave the same to the defendants, Irene von Kamp Gary and Ada Claire Higgins, voluntarily and without consideration, and for the purpose and with the intention of hindering, delaying, and defrauding the plaintiff in her claim for alimony; and such gift was a part of a deliberate scheme and design on the part of said A. B. von Kamp to hinder, delay, and defraud the plaintiff in her claim for alimony, and such purpose and intention were known to the defendants, Irene von Kamp Gary and Ada Claire Higgins.
Said deed is invalid and ineffective to pass the title to said real estate as against the plaintiff, and the plaintiff is entitled to have said deed set aside and canceled.
Although the defendant, A. B. von Kamp, has carefully and persistently withheld from the plaintiff such information as he could regarding his property and financial affairs, the plaintiff lists herein as best she can a schedule of his property subject to her claim for temporary and permanent alimony and attorneys’ fees, to wit: (Here the plaintiff listed the tract of land above described; two other described tracts in the City of Augusta; also “certain shares” of stock in four named corporations; “cash on deposit” in the defendant bank and trust company, the amount of which is unknown to the plaintiff; and a life-insurance policy on the life of the defendant, A. B. von Kamp.)
The petition contained among others the following prayers: (b) that the plaintiff be awarded temporary and permanent
There is no allegation or contention in this case that the defendant husband was insolvent, and therefore, in so far as the foregoing law is concerned, the deed assailed by the plaintiff as being fraudulent must stand or fall by the standard set forth in paragraph 2.
The law as stated in this paragraph or subsection may be applied in a proper case either to a deed based on a valuable consideration or to a voluntary conveyance, and this is true regardless of whether the grantor was solvent or insolvent. Clayton v. Brown, 17 Ga. 217 (2), 222; Sullivan v. Ginsberg, 180 Ga. 840 (1a) (181 S.E. 163). Thus, while the plaintiff alleged that the deed was a voluntary conveyance, it is apparent from the petition as a whole that it was based upon paragraph 2, so far as related to disposition of property.
According to several decisions by this court, a wife suing for alimony may obtain relief under the foregoing statute, as against a fraudulent conveyance by her husband. Parker v. Parker, 148 Ga. 196 (96 S.E. 211); Donalson v. Bridges, 162 Ga. 502 (134 S.E. 302); Newton v. Falligant, 166 Ga. 450 (143 S.E. 391); Wood v. Wood, 166 Ga. 519 (3) (143 S.E. 770); Stephens v. Stephens, 168 Ga. 630 (1) (148 S.E. 522); McCallie v. McCallie, 192 Ga. 699 (1) (16 S.E.2d 562). Even if she might not be considered as a creditor in the ordinary sense, she would come within the phrase, “and others.” Coulter v. Lumpkin, 100 Ga. 784 (1), 787 (28 S.E. 459); McDowell v. McMurria, 107 Ga. 812 (2), 816 (33 S.E. 709); McVeigh v. Harrison, 185 Ga. 121 (194 S.E. 208); Kirby v. Johnson, 188 Ga. 701 (2a) (4 S.E.2d 643); Hudson v. Hudson, 189 Ga. 410, 411 (5 S.E.2d 912);
The main contentions of counsel for the defendants in error (the grantees) were stated in their brief in the form of two general questions as follows: 1. May a court of equity at the instance of the wife set aside and cancel absolutely a voluntary deed by the husband, alleged to have been made with intent to hinder, delay, and defraud the wife? 2. On demurrer, what is the effect of the wife‘s bare allegation that voluntary transfers by the husband were made with intent to hinder, delay, and defraud the wife, where her petition sets forth specified property retained by the husband amply sufficient to discharge the wife‘s claim for alimony?
Dealing with these questions in their inverse order, we cannot agree that the allegations to the effect that the husband made this deed with intent to delay and defraud his wife with respect to her claim for alimony, and that such intention was known to the grantees, must be counted for naught merely because it affirmatively appears from other allegations that the husband, while conveying voluntarily a tract of land worth approximately $250,000, retained other property aggregating in value about $150,000. The petition alleged in effect that, from all of the husband‘s property as it existed before this conveyance, he received an income which the plaintiff estimated as being in excess of $15,000, of which this tract of land itself produced approximately $10,000. The fact that the husband at the time of the separation owned property worth $400,000 (he having executed the deed in question only three days after the separation) would be a material factor in determining what amount of
The allegations as to fraud and notice were sufficient to withstand a general demurrer in a case falling under the
While the fact that the husband retained valuable properties after executing the questioned conveyance may argue strongly that he did not in fact make such conveyance with intention to delay or defraud his wife, we cannot, as a court, take these facts and use them as a matter of law to erase absolutely the positive allegations with respect to the husband‘s intention. See, in this connection, Keeter v. Bank of Ellijay, 190 Ga. 525 (1), 528 (9 S.E.2d 761).
Moreover, any act done by a debtor merely to delay his creditor may amount to a fraud under the provisions of this statute. “In this sense, therefore, is any intention to delay a creditor fraudulent in law. It does not follow that the intent to delay must be coupled with an actual moral fraud intended to be perpetrated by the debtor upon his creditor, in order for
So we are of the opinion that the allegations as to fraud and notice were not rebutted as a matter of law by the allegations as to the amount of property owned by the defendant after executing the deed in question.
As to the other question stated by counsel, it is true that, even though this deed should be condemned and held void as a conveyance made with intention to delay or defraud the plaintiff, it should still be treated as a valid conveyance as between the grantor and the grantees; but it does not by any means follow that the petition was subject to general demurrer as failing to state a cause of action. That is to say, while the deed may not be canceled “absolutely” so that the property may be still considered as the property of the husband for all purposes, the petition, in our opinion, alleges sufficient facts to authorize its cancellation in so far as the rights of this plaintiff are concerned.
If the prayer of the plaintiff for cancellation should be construed as praying total extinction of the deed, then of course she prayed for too much; but the petition also contained a prayer for general relief, and it seems that these prayers, in case of recovery, would authorize a decree protecting any right or title of the grantees in this property, after and subject to the right of the wife to alimony. The plaintiff should not be held to have lost her case by praying for too much. McDowell v. McMurria, 107 Ga. 812 (33 S.E. 709); Pierce v. Middle Georgia Land & Lumber Co., 131 Ga. 99 (2) (61 S.E. 1114); Gibbs v. H. T. Henning Co., 189 Ga. 675, 677 (7 S.E.2d 238). Nothing
The defendants in error rely strongly on Wallace v. Wallace, 189 Ga. 220, 223 (5 S.E.2d 580), wherein it was said: “Unless, however, the creditor is hurt by the fraudulent conveyance, relief will be denied. How has the former wife been hurt? The former husband has not failed or refused to meet the instalments as they become due. He is not alleged to be in arrears a single cent; and in the absence of a threat or purpose on his part to cease payments, her present effort to attack the fraudulent conveyance is premature.” Whether or not that decision squares with other unanimous decisions as to the right of the wife to sue for alimony and in the same action to seek cancellation of a deed alleged to be void under the
In a case of this kind, wherein the plaintiff seeks cancellation of a deed as having been made in fraud of a creditor, in violation of
In view of what has been said, the court erred in sustaining the general demurrer and dismissing the petition as to the demurrants.
Judgment reversed. All the Justices concur.