Wells v. Blitch

192 S.E. 209, 184 Ga. 616, 1937 Ga. LEXIS 588

• Court: Supreme Court of Georgia
• Decided: June 16, 1937
• Docket: No. 11855
• Status: Published

Opinion

Bell, Justice.

1. A suit for a money judgment does not constitute a lis pendens, affecting the title to property conveyed by the defendant pending the action. Moody v. Millen, 103 Ga. 452 (30 S. E. 258).

2. “A bona fide sale of property, not made to hinder, delay, or defraud creditors, is not rendered invalid because the vendor may have been insolvent at the time.” Hadden v. McQueen, 138 Ga. 406 (75 S. E. 333).

3. Possession retained by the vendor after an absolute conveyance of real estate is prima facie evidence of fraud, but may be explained. Goodwyn v. Goodwyn, 20 Ga. 600 (5); Stephens v. Southern Cotton-Oil Co., 147 Ga. 410 (2) (94 S. E. 245).

4. “If one with notice shall sell to one without notice, the latter shall be protected; or if one without notice shall sell to one with notice, the latter shall be protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.” Code, § 37-114.

5. Even if the claimant could not be considered as a bona fide purchaser until after payment of the purchase-money, and such payment was not completed until after the levy, although the deeds were made previously, the mere fact, that the property was levied on did not prove that the deeds were fraudulent as against the plaintiff in fi. fa., but the issue a's to fraud remained open for judicial determination, the payments made by the claimant after levy being at his own risk, as between him and the plaintiff ponding such adjudication. See, in this connection, Mackey v. Bowles, 98 Ga. 730 (2) (25 S. E. 834); Donalson v. Thomason, 137 Ga. 848 (4) (74 S. E. 762); Henderson v. Willis, 160 Ga. 638 (6) (128 S. E. 807).

6. Under the foregoing principles as applied to the instant claim case, the verdict in favor of the claimant was authorized.

(a) On the trial now under review the claimant introduced additional evidence to supply the deficiencies pointed out in the former decision, Wells v. Blitch, 182 Ga. 826 (187 S. E. 86).

(h) Under the evidence it can not be said as a matter of law either that the deeds made by the defendant to his wife were void a's against the plaintiff creditor, or that the claimant who purchased from the wife was not a bona fide purchaser without notice. Accordingly, the evidence was sufficient to support the verdict under either theory stated in the Code, § 37-114, supra. Willingham v. Slade, 112 Ga. 418 (2) (37 S. E. 737); West v. Wright, 121 Ga. 470 (49 S. E. 285).

No. 11855. June 16, 1937. Rehearing denied July 12, 1937. W. T. BurTchalier and J. V. Kelley, for plaintiff. E. E. Elders and O. L. Gowari, for defendants.

7. The rule that “if there are several pleas filed by the defendant, a verdict for the defendant shall show upon which of the pleas the verdict is rendered” (Code, § 110-102), has no application to a claim ease, although the claimant may introduce evidence to sustain his claim on several theories. See, in this connection, Underwood v. Thurman, 111 Ga. 325 (36 S. E. 788).

8. The ground of the motion for a! new trial complaining of the court’s refusal to give a requested charge does not state that the request was in writing, and thus presents no question of error for determination by this court. Little v. West, 145 Ga. 563 (2) (89 S. E. 682); Nevil v. Trapnell-Mikell Co., 31 Ga. App. 207 (2) (120 S. E. 430).

9. Nor do the other special grounds' show reversible error. The judge did not err in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concw. On motion for rehearing, Russell, C. J., withdraws concurrence ahd dissents from the decision and judgment as originally entered.