176 Ga. 866 | Ga. | 1933
J. Hines Wood, as trustee for tbe bankrupt estate of A. J. Lovelady, brought a suit in equity against Lovelady and his wife, to subject to the claims of creditors represented by the plaintiff a house and lot claimed by Mrs. Lovelady in virtue of a deed executed to her by her husband several years before he was adjudicated a bankrupt, but not recorded until after the debts in favor of such creditors were created. When the credits were extended, the record title was in the husband; and the petition alleged that credit was extended to him by the various creditors upon the faith of his apparent ownership of the property. The petition prayed that Mrs. Lovelady be held and adjudged to be estopped from setting up any claim to the property, and that it be administered in bankruptcy as a part of the estate of A. J. Lovelady. The defendants filed an answer alleging that the title was bona fide in Mrs. Lovelady, and denying that she had been guilty of any conduct such as would raise an estoppel against her. The trial resulted in a verdict in favor of the defendants. The plaintiff excepted to the overruling of his motion for a new trial, based upon the general grounds and several special grounds.
The evidence authorized the verdict for the defendants. According to their testimony, the property in question was purchased by Mrs. Lovelady in 1919, at which time she paid a part of the purchase-money in cash and gave notes for the balance. A bond for title was executed and delivered to her as the purchaser and obligee, and the remainder of the purchase-money was finally paid to the seller by A. J. Lovelady in part satisfaction of an indebtedness due by him to his wife, represented by notes which were in evidence. These notes were in existence at the time the payments were made by A. J. Lovelady, and credits for these payments were duly entered thereon. The deed made in pursuance of the bond for title was executed on June 7, 1920, not to the obligee, Mrs. Lovelady, but to her husband, A. J. Lovelady. This deed was recorded on December 31, 1920. Mrs. Lovelady testified, that, as soon as she discovered that the deed had been made to her husband, she called his attention to the fact that the conveyance should have been made to herself, and that he then (January 8, 1921) executed a deed of conveyance to her, as she “had paid for the property,”
The claims of only two creditors were involved by the evidence. One was a claim of W. T. Poole based on notes executed by A. J. Lovelady for money borrowed in November, 1921, and June, 1922. The other was an account in favor of Aycoek-Eobinson-Smith Company for merchandise sold and delivered to A. J. Lovelady between September, 1929, and November 20, 1930, the date when the deed to Mrs. Lovelady was recorded. During the several years which intervened between the date of the execution of this deed and the date of its record, Mr. and Mrs. Lovelady occupied the house and lot as a residence, and the record title stood in the name of the husband. In the meantime he returned the property for taxation and procured fire insurance thereon, both in his own name. Mrs. Lovelady testified that she did not know that the property was carried on the tax books in the name of her husband, or that the insurance policies were issued to him as owner. She requested him to attend to these matters for her, and allowed him a credit of $200 annually upon the note which she held against him, in consideration of the combined expense for taxes and insurance, upon his estimate and statement that this was the approximate amount which he expended for these purposes. The evidence authorized the inference that her failure to have the deed from her husband to herself promptly recorded was due to neglect or oversight.
W. T. Poole testified as follows: “At the time I advanced or loaned the money represented by these two notes, I knew where Mr. Lovelady lived, where his residence was, in the town of Ball Ground. That was a nice home. In my opinion that home at that time was worth $10,000. I thought that home place was the property of Mr. Lovelady. He lived in the house at that time, and he has lived in the house always since that time. I did not know he didn’t own this property at the time I made this loan. From the fact that he lived in the property and continued to live in it for a number of years, it was my opinion that the property belonged to him,
J. C. Aycock, credit manager Ayeock-Eobinson-Smith Company, testified that he was influenced to extend the credit for his company by a report from E. G. Dun & Company as to the financial ability of A. J. Lovelady. What purported to be a statement made by Lovelady to Dun & Company was introduced in evidence, and contained the language “Home — Ball Ground, $15,000.” This statement was signed “A. J. Lovelady & Co. By Ella Holcombe.” J. E. Mardre testified that while employed by E. G. Dun & Company as a traveling reporter he procured this statement from Mr. Lovelady in his store in Ball Ground, and that it was based upon information given by Mr. Lovelady in person; and that after the statement was reduced to writing Mr. Lovelady requested Miss Holcombe, his employee, to sign the same for him, “A. J. Love-lady & Company,” being the name in which he conducted business.
A. J. Lovelady testified that he made no such statement to Mardre, and had not represented himself as the owner of the property in question. Miss Holcombe testified, that, while she recognized the signature as having been made by herself, she did not recall the circumstances under which she signed the document; and further: “As to this financial statement on the E. G. Dun & Company form, dated July 27, 1928, I do not remember any man coming in there and asking Mr. Lovelady for a financial statement and Mr. Lovelady giving him a financial statement and then telling me to sign it. He never did give me that authority to sign any financial statement; the only thing I would sign was this, he gave me authority to do this, when he would buy a bill of merchandise I usually signed that for him. Some times he would ask me to sign that, because his eyes were not so good, he would say,
The above is a sufficient statement of the facts. In Bell v. Stewart, 98 Ga. 669 (27 S. E. 153), it was held that where a wife’s
It follows from what has been said that the court did not err, as against the plaintiff, in instructing the jury in the following language: “The mere fact that the property was so returned for taxes by the defendant A. J. Lovelady, and that the insurance on the property was carried in the name of the defendant A. J. Lovelady, would not alone and of itself be sufficient to authorize a recovery by the plaintiff, unless . . some one or more of the creditors represented by the plaintiff knew of such facts and relied upon them in extending credit to the defendant A. J. Lovelady;” the assignment of error being in substance that this instruction eliminated from the jury any right to consider these circumstances in connection with, the “presumptive possession” of the husband, as evidence tending- to show title in him. Tinder the allegations of the petition, the plaintiff was seeking merely to raise an estoppel against the wife, and not to show actual title in the husband. The creditors could have no advantage of facts and circumstances of which they had no knowledge, and upon which, therefore, they did not rely in extending credit to the husband. See Burt v. Kuhnen, 113 Ga. 1143 (39 S. E. 414).
W. T. Poole, one of the creditors in whose behalf the suit was brought, testified that in making the loans to A. J. Lovelady he dealt with a man by the name of J. H. Higgins, who claimed to be the agent of A. J. Lovelady to procure the loans. He further testified that Higgins brought the notes to him with Lovelady’s signature thereon, and that he had no dealings whatever directly with Lovelady. In one of the grounds of the motion for a new trial error is assigned upon the rejection of testimony of Poole, to the effect that “Mr. Higgins told him he was getting this money
The plaintiff assigned error upon an instruction that if “the defendant A. J. Lovelady was not in possession of the property described in the petition, but [if] the defendant Mrs. Cleo T. Lovelady had the open, visible, exclusive, and unambiguous possession of the property, such possession as was not liable to be misconstrued or misunderstood, then the plaintiff would not be entitled to recover.” It is complained that this charge was confusing and erroneous, because it did not “fix any time when such possession should have existed in order for the charge to apply,” and could have “had reference to the time of the filing of the suit and not to the time of the extension of credit by either of the creditors represented by movant.” It is pointed out that the deed to Mrs. Lovelady was recorded-before the suit was filed, but was not recorded at the time the credit was extended. “ Movant insists that rmder this excerpt the jury could have reasonably inferred 'that if Mrs. Lovelady was in possession of the premises at the time of the bringing of the suit, the plaintiff would not be entitled to recover, and such instruction was most harmful and injurious to movant.” Upon a consideration of the entire charge, i't does not appear that the excerpt here referred to was calculated to mislead or confuse the jury as contended.