Jones v. Foster

103 S.E. 491, 150 Ga. 277, 1920 Ga. LEXIS 137

• Court: Supreme Court of Georgia
• Decided: June 16, 1920
• Docket: No. 1589
• Status: Published

Opinion

Fish, C. J.

1. This is a competition between a judgment creditor of a husband, and the latter’s wife claiming legal title to the land levied on; she holding under a deed executed by the husband to her before judgment was rendered against him. The wife claimed the land, and upon the trial of the issue made in the claim case she contended that the conveyance to her by her husband was in recognition of the pre-existing equitable title in her arising from the fact that her money was paid by the husband for the land, the legal title having then been taken in his name, and that the conveyance by him to her was made for the purpose of conveying to her what in equity she then owned. There was evidence on the trial tending to show that a portion, at least, of the purchase-price of the land was paid by the husband with the wife’s money, she tliereby acquiring an undivided equitable interest in the property. On this issue the jury, if it credited the evidence for the claimant, would have been authorized to ■ find in her favor as to some undivided interest in the land. The case does not involve the mere comparison of equities between a judgment creditor and one holding the equitable title. Dodd v. Bond, 88 Ga. 355 (14 S. E. 581); Ford v. Blackshear Mfg. Co., 140 Ga. 670 (79 S. E. 576) ; Harrison v. Peacock, 149 Ga. 515 (101 S. E. 117).

(a) On the issue here the statute is not involved which provides that a conveyance by a debtor of his property for the purpose of delaying and hindering his creditors is void as against them, where the person taking knows of such intention. That statute, in terms, applies to a conveyance made by one of his own property, witli such intention known . to the taker.

(b) The judge correctly charged the law in respect to fraudulent conveyances by one of his own property; but his charge was of such character as to necessarily exclude from consideration by the jury the material issue above mentioned.

No. 1589. June 16, 1920.

'Claim. Before Judge Terrell. Carroll superior court. July 9, 1919.

To the summary of facts appearing in the foregoing syllabus the following may be added, in connection with headnotes 2 and 3: The judgment on which the plaintiff’s execution was based was dated December 12, 1913. He testified that the credit was extended to Jones, the defendant in execution, in August, 1911, for an interest in a business that the plaintiff sold to him. The deed to the claimant from Jones (her husband) was on a stated consideration of love and affection and $250. It was dated January 4, 1912, and recorded on February 12, 1912. There was testimony tending to show that her money went into the purchase-price of the property in October, 1908. It was contended on her behalf that the property was really hers, although the conveyance in 1908 was made to her husband; and that, although she spoke to him several times about making a deed to her, he neglected to do so until 1912. Until that year he returned the property for taxation in his name. Among other evidence the plaintiff introduced (and it was received over objection that it was immaterial and irrelevant) a mortgage for $718.47 to the Carrollton Bank, dated January 18, 1912, recorded on the next day, due February 1, 1912, from Jones and Stevens as sole owners of a harness business, conveying all the stock, materials, etc., in their shop; and testimony of Jones that he never paid anything to the bank.

The court refused a request to charge the jury as follows: “ If you should find that the deed in question [from Jones to his wife, tire claimant] was made without a valuable consideration, but is only a voluntary deed, then I charge you that as a matter or law, before this property could be found subject, it would be necessary for you to find that Mr. Jones, at the time of the execution of this deed, was insolvent at that time.”

2. On the issue as to the conveyance being fraudulent the judge did not err in the admission of evidence to which objection was made.

3. There being evidence tending to show that the conveyance in question was voluntary, and not for a valuable consideration, the judge should have instructed the jury, in compliance with a proper and timely written request, that if the conveyance was voluntary it was not void unless the husband was insolvent at the time it was executed. Civil Code, § 3224, par. 3.

Judgment reversed.

All the Justices ooneur. Boykin & Boykin, for plaintiff in error. S. Holderness and C. E. Roop, contra.