Mobley v. Merchants & Planters Bank

122 S.E. 233, 157 Ga. 658, 1924 Ga. LEXIS 223

Opinion

Atkinson, J.

1. “Where the judge gives in charge substantially the law covering the case, if more specific instructions on any point are desired, they should be asked; but the law of the case must be given to the jury to the extent of covering the substantial issues made by the evidence, whether requested or not, or whether the attention of the court be called thereto or not; otherwise the verdict will be set aside.” Central Railroad v. Harris, 76 Ga. 501 (1 b); Savannah Electric Co. v. Jackson, 132 Ga. 559 (2) (64 S. E. 680); City of Atlanta v. Blackman Health Resort, 153 Ga. 499-505 (4) (113 S. E. 545).

2. A debtor may prefer one creditor to another, and to that end he may bona fide give a lien upon his property by mortgage or other legal means. Civil Code (1910), § 3230. There was evidence in this ease tending to show that the security deed to the claimant was a bona fide preference by the debtor. The evidence was sufficient to show an issue on the point; and it was error requiring the grant of a new trial to omit to give the above principle in charge, though no request for such a charge was made.

3. The rights of neither subsequent purchasers nor subsequent creditors were involved in this case; and consequently it was erroneous, while applying the provisions of the Civil Code (1910), x 3224 (3) and § 4109, to charge the language employed in the two following excerpts from the instructions given.: (a) “I charge you that every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value, without notice of such voluntary conveyance. That would also apply to a judgment creditor.” (b) “I charge you further that every sale made with intent to defraud either creditors of the vendor or prior or subsequent purchasers, if such intentions be known to the vendee, shall be absolutely void as against such creditors or purchasers.”

4. The portions of the charge excepted to in the second, third, and sixth amended grounds of the motion for new trial are not erroneous for any reason assigned.

5. As the judgment refusing the claimant’s motion for a new trial will be reversed on the special grounds, no ruling will be made on the assignments of error based on the general grounds.

Judgment reversed.

All the Justices concw, Gilbert, J., specially. S. P. Cain, for plaintiff in error. M. L. Ledford and Ira Carlisle, contra.