Avary v. Avary

• Decision Date: 08 January 1947
• Docket Number: 15672.
• Citation: 41 S.E.2d 314,202 Ga. 22
• Parties: AVARY v. AVARY.
• Court: Georgia Supreme Court

41 S.E.2d 314

202 Ga. 22

AVARY v. AVARY.

No. 15672.

Supreme Court of Georgia

January 8, 1947

Rehearing Denied Feb. 7, 1947.

Syllabus by the Court.

1. To obtain a reversal of the judgment about which complaint is made, it is necessary not only to show error but injury legal error being both a compound of error and injury. Where a contention is made by the pleadings, but abandoned on the trial and not submitted to the jury, that issue is as effectively eliminated as if a demurrer thereto had been sustained.

2. When the court has the parties rightfully before in and jurisdiction of the subject-matter, it is fully authorized to adjudicate all germane issues between the parties.

3. A will, made pursuant to a contract, which confers benefits upon a third party, may be revoked without the consent of the beneficiary, where (a) the latter is not a party or in privity, or (b) no trust has been created for him under the contract, or (c) his relation or status has not been changed.

4. A conveyance of real estate does not violate section 28-201(1) of the Code unless it be made by an insolvent debtor to some person 'either in trust or for the benefit of, or in behalf of creditors' where some 'trust or benefit' is reserved to the grantor, or some person for him, in the property actually conveyed.

5. Where a sale, other than between husband and wife, is attacked as in contravention of the Code, § 28-201, (2), as having been made to hinder, delay, or defraud creditors, it is necessary to show that the grantor had such intention in making the sale, and that the same was known to the grantee or the circumstances were sufficient to put him on inquiry.

6. A conveyance of property for the sole consideration of a promise by the grantee to live with, look after, and care for the grantor for the remainder of his life, is not a voluntary conveyance, but is one for a valuable consideration.

7. Since the case could have had no other right result, on the evidence before the jury, than the one arrived at, the alleged errors in the charge will not be considered.

An execution in favor of Robert Lee Avary, Jr., as executor of the estate of Mrs. Pattie G. McPhail, against Dr. James C. Avary, was levied on certain described real estate located in Fulton County then in possession of the defendant in execution. James Corbin Avary, by a claim interposed thereto, said that he owned the property under levy subject only to a life estate in Dr. Avary. On May 1, 1942, the plaintiff in execution filed a petition in aid of his levy, in which he alleged: On March 7, 1940, Dr. James C. Avary executed twelve separate warranty deeds, each reciting a consideration of '$5.00 and love and affection,' which purportedly conveyed to James Corbin Avary, his nephew, subject to a life estate in the grantor, the property claimed, together with other valuable realty located in Fulton County and other counties in Georgia. Soon thereafter the deeds were recorded in the respective counties where the lands were located. Dr. Avary, at the time he made the deeds, was nearly 84 years of age, and because of his advanced years not capable of managing his affairs, and did not have sufficient mental capacity to transact business and make valid contracts or to comprehend and understand the meaning of a deed. The deeds made by Dr. Avary were all voluntary conveyances, being without any consideration. The effect of the deeds was to hinder and delay creditors in collecting their debts, particularly the estate of Mrs. McPhail, his largest creditor. The deeds conveyed all real estate owned by the grantor, and the grantee knew at the time they were executed that the grantor did not have sufficient mental capacity to understand the import of his act. The life estate retained by the grantor, because of his advanced age, was practically worthless, and immediately after the execution of the deeds he was hopelessly insolvent. The property conveyed had a value just about equal to the grantor's indebtedness. He prayed that both the claimant and Dr. Avary be served with a copy of the petition; that Dr. Avary be made a party and a guardian ad litem be appointed for him; that both the claimant and Dr. Avary be enjoined from charging the status of the property described by the several deeds; and that all of the deeds be delivered up and canceled. By response to the petition, the claimant denied that the deeds made to him by Dr. Avary were voluntary conveyances, but said that they were made for the consideration therein expressed. The grantor stated at the time he made the deeds that he owed no debts, and the grantee did not know of any. He accepted the deeds in good faith and without any knowledge on his part that Dr. Avary when making them had any intention by so doing to hinder or delay his creditors in the collection of their debts. Dr. Avary was not indebted in any amount to the estate of Mrs. McPhail, but on the contrary she was due him the sum of $9,000. The judgment in favor of Mrs. McPhail's estate had been obtained by collusion and such other fraudulent means by her executor and his father, Robert Lee Avary, Sr., and it would be unconscionable and inequitable to allow it enforced. In this connection, it was alleged that when suit was filed during August, 1940, by Robert Lee Avary, Jr., as executor of the estate of Mrs. Pattie G. McPhail, against Dr. Avary on notes purportedly given by Dr. Avary to Mrs. McPhail in 1932, he not only represented the estate of Mrs. McPhail, as executor, but also held a general power of attorney from Dr. Avary to manage all of his affairs, and Dr. Avary relied upon him to do so. Robert Lee Avary, Sr., was named guardian ad litem for Dr. Avary, and both withheld from counsel employed by the guardian ad litem information showing that the notes sued on were wholly without consideration. Robert Lee Avary, Sr., had filed, and there was then pending in Fulton superior court, a suit against the respondent to cancel all of the deeds in question here. He denied that Dr. Avary did not have sufficient mental capacity to contract when the deeds were executed. He prayed: That all of the deeds from Dr. Avary to him be decreed valid conveyances and not made for the purpose of hindering, delaying, or defrauding creditors; that the judgment on which the execution issued be decreed void and set aside; and that Robert Lee Avary, Jr., be required to render an accounting for rents received from the property of Dr. Avary. A demurrer was filed to the response on the grounds that it set forth no defense, either at law or in equity; it was an attempt to collecterally attack the judgment from which the execution issued; it made an attack upon the judgment and execution which was not open to the defendant in execution; it contained recitals with reference to a pending suit in Fulton superior court to which the plaintiff in execution was not a party; and it set forth no facts sufficient to authorize the relief sought.

On hearing the demurrer, the court struck from the response all allegations with reference to a pending suit in Fulton superior court, filed by Robert Lee Avary, Sr., against the respondent, and overruled all other grounds of the demurrer. On March 18, 1946, claimant amended his response and alleged: During December, 1939, his uncle, Dr. Avary, who then lived alone in a home given to him for life by Mrs. McPhail, agreed with him and his wife that, if they would move into the house with him, keep house and care for him during the remainder of his life, he would make a will giving the two minor children of the claimant all of his property. Pursuant to this proposition, the claimant, his wife, and children, moved to the home of Dr. Avary during January, 1940, and began to render him all necessary care and attention. Dr. Avary made a will, as he had agreed, giving his property to the two children of the claimant. Shortly after the will was executed, Robert Lee Avary, Jr., as executor of Mrs. McPhail's estate, notified the claimant that he had moved in the McPhail home without authority from the executor, and it would be necessary for him to make certain arrangements about his occupancy of the home, in which Dr. Avary only had a life estate, or else vacate the same. He was also advised by others that the will of Dr. Avary would most likely be contested. The claimant advised with Dr. Avary and told him that he would move out if he desired it. Dr. Avary again requested the claimant and the claimant's family to remain with with him and look after and take care of him, and stated that he would, in order to remove any doubt about the validity of his will, convey all of his property to the claimant if the claimant would consent to do this. Upon the claimant's agreement to do so, Dr. Avary executed, had recorded, and delivered to him deeds for his property, but at the suggestion of the claimant retained a life estate therein. While the deeds each recited a consideration of '$5.00 and love and affection,' that was not the sole consideration for them. All of the deeds were made by Dr. Avary to carry out the terms of the oral agreement that he would convey his property to the claimant upon the promise and undertaking to live with and care for him during the remainder of his life. The claimant fully performed his part of the agreement by living with Dr. Avary and caring for him until his death in October, 1942.

The plaintiff in execution renewed his demurrer, first filed to the response as amended, and for additional grounds of demurrer said that it should be stricken: because (1) it did not affirmatively show that Dr. Avary did not waive the fraud alleged to have been perpetrated on him; (2) it failed to allege that he did not acquiese in the judgment and did not recognize the same...