Conley v. Thornton

7 S.E. 127, 81 Ga. 154

• Court: Supreme Court of Georgia
• Decided: April 20, 1888
• Status: Published

Opinion

Bleckley, Chief Justice.

The court charged the jury: “If you believe from the evidence that it was the intention of the plaintiff, when he made the bill of sale, to delay or defraud his creditors, he could not by an action have recovered from Moore, and he cannot in this action recover from Conley.” It is said that the verdict is contrary to this instruction, because the evidence showed that the intent of plaintiff was to defraud his creditors when he executed the bill of sale to Moore and turned over tho property. This defence goes upon a sort of outlawry of the plaintiff. It rests on the rule of law that the public tribunals will not aid parties who are in pari delicto, to change the circumstances under which they have placed themselves by their wicked dealings. To put an absolute interdict on the remedies of a citizen, the case ought to be clear — free from all reasonable doubt. The defence is not recognized for the sake of the person who sets it up, but for the sake of the public; and of course the public do not want to defeat the action otherwise meritorious, unless the plaintiff is clearly within the rule that denies remedy. "Wo find that, though the bill of sale was rashly and indiscreetly made, according to the evidence in this case, the jury could very well have doubted whether there was an intention on the part of Thornton to delay or defraud his creditors, not only from what he testified directly as to his intention, but from the circumstances that he disclosed, namely, that he had made arrangements in his contract with Moore to pay certain of his creditors, and as to the one who had a pending suit, the claim was for no great amount, the amount was disputed, and he had made arrangements to pay any recovery that might be had in that case in the event there was a recovery; so we think the imputed fraudulent intent was not free enough from doubt to constitute an absolute bar to this action. The .jury were warranted in finding that there was no such intention, or at all events, that there was no such evidence of the intention as to make the matter free enough from doubt to deny the plaintiff’ his remedy.

2. The only other position argued before us was, that the evidence showed that the title to this property was in a corporation, and not in Thornton, the plaintiff. It is alleged that divers errors were committed by the court in ruling and charging the jury upon that branch of the case. It was an immaterial branch of the case, because, whether Thornton had the title or not, he exercised dominion over the title and the possession, and it was under his alleged disposition of title and possession that the defendant in this action claimed. He claimed under Thornton through Moore, and whether his title was fraudulent as against Thornton was the real matter in controversy. It would be no defence to him that the corporation of which Thornton ivas a member was the real owner of the property. Thornton assumed to dispose of the property and Conley held it under him; it is not for Conley, who derived his possession from Thornton through Moore, to set up an adverse title to Thornton, in a corporation under which Conley does not claim. He is not connected with that corporation by privity or otherwise; he has not acquired its title, if it had a title ; and so we treat that branch of the case as immaterial to the merits of the dispute.

3. There were several other grounds embraced in the motion for a now trial; and we have looked at them. They do not present any error upon the surface, and if there be error under the surface, wo have not had the assistance of counsel to dig it up and point it out to us and so on the whole case, wo affirm the judgment refusing to grant a new trial.

Judgment affirmed.