Edmonds' Ex'rs v. Goodwyn

28 Ga. 38

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

This is an attempt to enforce a foreign judgment, thirty yeai’s old, against certain persons in this State. To the plea of the statute of limitations, the complainant replies that while it is true that he had a cause of action upon his judgment against the estate of Burwell Goodwyn, the debtor, that he had none which he could enforce against the defendants, until the fraudulent concealment of certain property by them, belonging to Burwell Goodwyn, was recently discovered. Let this pass for as much as it is worth. We rather think it was a sufficient reply to the plea.

Burwell Goodwyn resided in the State of Virginia when this property was sold by the sheriff as his property. There the creditor has lived. The property, when sold, went immediately back into the possession of Burwell Goodwyn, the defendant in execution, and remained there as long as he lived, and has been in the possession of his family ever since. Here was a badge of fraud, open and notorious, which should have put the creditor upon inquiry whether the pretended sale was not a sham ; and whether the money of Burwell Goodwyn, and not of Mrs. Elizabeth Goodwyn, his mother, did not go to pay for the property.

While, then, we admit that the fraud, until discovered, will prevent the statutory bar from attaching, yet there must be reasonable diligence on the part the creditor to detect the fraud. That, we think, is wanting in this case ; and that the want of it is fatal to the complainants’ right to recover, if there was no other reason.

Judgment reversed.