Roach v. Terry

138 S.E. 902, 164 Ga. 421, 1927 Ga. LEXIS 205

Opinion

Hines, J.

(After stating the foregoing facts.)

Counsel for the plaintiffs in error expressly abandon the first, second, fifth, seventh, eighth, ninth, tenth, and eleventh grounds of the husband’s demurrer, and the first, second, third, seventh, ninth, tenth, eleventh, twelfth, and thirteenth grounds of the wife’s demurrer. This strips these demurrers of nearly all their feathers. The court below sustained the fourth ground of the husband’s demurrer, and the sixth ground of the wife’s demurrer, to which rulings no exception was taken. . So these grounds of demurrer are out of the way. This leaves for consideration the third, sixth, twelfth, and thirteenth grounds of the husband’s demurrer, and the fourth, fifth, eighth, fourteenth, and fifteenth grounds of the wife’s demurrer. The third ground of the husband’s demurrer, and the fourth and fifth grounds of the wife’s demurrer can be considered together. These grounds assail the allegation in the ninth paragraph of the petition, that the wife participated in the plan and scheme of her husband to defraud his creditors, as a mere conclusion, it not being stated what the wife did to make her .a participant in this plan and scheme of her husband, or how she participated therein. The allegation that the wife participated in the scheme of her husband to defraud his creditors, standing alone, might be subject to the objection that it was a mere conclusion; but when taken in connection with other allegations of the petition, it can not be so treated. The scheme of the husband is fully stated in the petition. It is alleged that he was insolvent, that he made a voluntary conveyance of his property to his wife, and that this was done by him to defraud the plaintiffs and his other creditors. This is the scheme charged to the husband. The petition then charges that the wife, with knowledge of this fraudulent purpose of her husband, received from him deeds to his property, purporting to be for a valuable consideration, when they were purely voluntary and without consideration. Thus the manner, in which the wife participated in the husband’s scheme is clearly stated, and the allegation of her participation therein, when taken with the other allegations of the petition, is not a mere conclusion.

The sixth ground of the husband’s demurrer and the eighth ground of the wife’s demurrer can be considered together. They attack the allegation of the twelfth paragraph of the petition, that the two conveyances from the husband to the wife were fraudulently executed and should be declared void and canceled, as a conclusion of the pleader, without any facts being alleged on which to base the same. Standing alone, the criticism of this paragraph would be well taken; but when viewed in the light of the other allegations of the petition, which state facts which make these conveyances fraudulent, this ground of demurrer is without merit.

The twelfth ground of the husband’s demurrer and the fourteenth ground of the wife’s demurrer can also be considered together. The petition alleges that petitioners are entitled to an injunction enjoining the wife from selling, encumbering, or otherwise disposing of any of the property embraced in said deeds to her. These grounds are based upon the proposition that no facts are alleged showing that the petitioners are entitled to the injunction prayed for in paragraph (b) of the prayers of the petition. There is a conclusive reply to this position. This ground of demurrer goes to the whole petition, and not to the portion seeking injunctive relief. Conceding that the petition alleges no facts which would entitle the plaintiffs to the injunction sought, this would furnish no reason for dismissing the petition as a whole. The demurrer must be overruled if any part of the petition is good in substance. Dyson v. Washington Telephone Co., 157 Ga. 67, 78 (121 S. E. 105). The petition makes a case for the cancellation of the deeds from the husband to his wife; and for this reason this ground of demurrer, which goes to the whole petition, was properly overruled. This renders it unnecessary to determine whether the plaintiffs are entitled to the injunctive relief which they seek.

The thirteenth ground of the husband’s demurrer and the fifteenth ground of the demurrer of the wife are the same, and are treated together. In these grounds it is asserted that under the allegations of the petition no decree can be legally rendered subjecting the property involved to the payment of the judgments of petitioners. This contention is based upon the proposition that property conveyed by deed to secure debt can not be levied upon as the property of the grantor in the security deed, unless first redeemed by the levying creditor. If this were an attempt to levy the executions issued upon the judgments of the plaintiffs, upon any of the property involved in this ease, and embraced in a security deed previously executed by the defendant, this position would be well taken. Shumate v. McLendon, 120 Ga. 396 (48 S. E. 10); Kidd v. Kidd, 158 Ga. 546, 553 (124 S. E. 45). In such case a judgment creditor would have to -redeem the property from the security deed, and then levy on it. Without alleging some peculiar facts which would render his remedy at law inadequate, a court of equity will not aid him in subjecting property covered by a security deed, to the payment of his judgment junior to such security deed. Swift v. Lucas, 92 Ga. 796 (19 S. E. 758) ; Virginia-Carolina Chemical Co. v. Rylee, 139 Ga. 669 (78 S. E. 27); First National Bank v. McFarlin, 146 Ga. 717 (92 S. E. 69); Dumas v. Tyus, 147 Ga. 307 (93 S. E. 894). If the plaintiffs can not finally subject the property embraced in the security deed given by the husband to another creditor before they obtain their judgments, they can certainly proceed to have canceled the deeds made by the husband to the wife, if the same were voluntary deeds made when he was insolvent, or, if made for a valuable consideration, they were made for the purpose of hindering, delaying, or defraud ing the plaintiffs in the collection of their debts. They can certainly proceed in equity to remove the obstacles created by these deeds from the husband to his wife, if made under the circumstances just mentioned. Conley v. Buck, 100 Ga. 187 (28 S. E. 97); Cowan v. Nicholson, 158 Ga. 425 (123 S. E. 681). Besides, not all of the property conveyed by the husband to the wife was embraced in the security deeds. Clearly property not so embraced can be subjected in this case to the payment of the judgments of the plaintiffs. But we see no valid reason why the court, having jurisdiction for the purpose of cancelling the conveyances from the husband to his wife, upon the grounds on which they were attacked by the plaintiffs, could not pass a decree ordering the property embraced in the security deed sold subject to that encumbrance, or why a court of equity could not make the holder of the security deed a party to the proceeding, and direct the sale of the property embraced in such instrument, and apply the proceeds first to the payment of the secured debt and expenses, and then apply the balance of such proceeds, if any, to the payment of the demands of the plaintiffs. Equity seeks always to do complete justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the court has jurisdiction for that purpose. Civil Code (1910), § 4522. Eor these reasons the court did not err in overruling these -grounds of the demurrers.

As all other grounds of demurrer are expressly abandoned by counsel for plaintiffs in error, and as we have seen that the grounds stressed in this court are without merit, the trial judge did not err in overruling the demurrers to the petition.

The language, “and bona fide purchasers would be protected under circumstances of that character," contained -in the court’s instruction to the jury, as set out in the first special ground of the motion for new trial, quoted in full in the statement preceding this opinion, is not pertinently, happily, and clearly stated; but we would not grant a new trial on this ground. We do not think that the use of the above language in the instruction complained of requires the grant of a new trial.

We think the trial ju&ge erred in the instruction to which '.the defendants except in the second special ground of the motion for new trial. The deeds from the husband to his wife were attacked upon two grounds only. One of these was that these deeds were made to delay or hinder the plaintiffs in the collection of their debts against the husband. The other ground of attack was that these deeds were voluntary conveyances made by the husband to his wife, and that he was insolvent at the time. In this charge the court instructed the jury that the husband had the right to prefer his wife, if he saw lit to do so, if his deeds to effect such purpose were not invalid for the reasons asserted by the plaintiffs, and about which the court had already instructed the jury. So far the instruction was accurate and correct. But the court then added the language, “or for some other valid reason.” This language raised an issue not presented by the pleadings, and turned the jury loose, without chart or compass, and without telling them what other circumstances would render these deeds invalid, to say whether in their opinion there was not, some other valid reason which rendered these conveyances null and void. In so instructing the jury we think that the court erred, and that this error requires the grant of a new trial.

The court did not err in the instruction set out in the third special ground of the motion for new trial. Simmons v. Realty Investment Co., 160 Ga. 99 (127 S. E. 279). In the cases of Hicks v. Sharp, 89 Ga. 311 (15 S. E. 314), and Fouts v. Gardner, 157 Ga. 362 (121 S. E. 330), this court was dealing with transactions between relatives other than man and wife.

The refusal of the court to give the instruction requested by counsel for the defendants, and set out in the fourth special ground of the motion for new trial, does not require the grant of a new trial, as the principle of law embraced in said request was substantially covered in the charge of the court to the jury.

Judgment reversed.

All the Justices concur.